I have earned my living practicing law for what is fast approaching thirty years. One of my law partners jokingly (I think) refers to me as "the corporate heart of darkness" because of my ability to remain on task and to appear unmoved or unshaken by the facts of a particular case, even when they are tragic. Notwithstanding the propriety of that particular sobriquet, it is neither a source of embarrassment nor one of pride. It simply is what it is.
For most of my career, I have defended individuals and entities, private and public, in civil lawsuits, which are actions in which the remedy sought is primarily, if not exclusively, money damages. I defend personal injury actions. I defend civil rights actions. I defend employment discrimination actions. In other words, I get involved on behalf of someone or something alleged to have done something that should not have been done, which action is alleged to have caused harm to another or on behalf of someone or something alleged to have failed to do something that should have been done, which failure is alleged to have caused harm to another. In my line of work, it seems to me that the word "allegation" carries a far less loaded meaning than it perhaps does elsewhere.
As a lawyer, I deal in facts and in evidence. They are the bread and butter of my profession. My living is earned litigating cases and in the courtroom success and failure are measured not by what a lawyer knows. Success and failure are measured by what that lawyer can prove on his or her client's behalf. In the courtroom a party is put to its proofs and not simply permitted to rely upon its allegations.
For the past several days, as the 2020 Presidential Election has been taking place, Mr. Trump and a number of his surrogates (both family members and professional contacts) have alleged that this election has been stolen from him and that numerous people all over the nation, including but not limited to Pennsylvania, Michigan, Wisconsin, and Georgia, have conspired against him. On Thursday, November 5, from a podium upon which the Seal of the President of the United States was affixed, he raged on for seventeen minutes from the Briefing Room of the White House alleging without a modicum of proof to support his allegations that he had actually won the election and that his political opponents are attempting to steal it from him. He, the President of the United States, from the White House declared the election to have been a fraud.
Full disclosure demands that I come clean on two things. First, I am a registered Republican and have been since I first registered to vote upon turning eighteen more than three and one-half decades ago. Second, I am not a Donald Trump fan. In 2016, I voted for myself for President - and came within only a few million votes of winning as it turns out. This year, I cross party lines and voted for Joe Biden. My reasoning (not that it is anyone's business)? Seventy years ago, the man behind the Resolute Desk had a sign on it that embraced his belief that no matter what happened, good, bad, or indifferent in these United States, at day's end he was the person accountable.
President Harry S. Truman
As Thanksgiving approaches, this nation is still drowning in COVID-19. If you do not believe that one of the principal reasons why is Mr. Trump's abject failure of leadership, then you and I are going to have to agree to disagree.
My parents raised me that if you do it, then you own it. Action, and inaction, has consequences. We are free to choose but we are not free from the consequences of our choices. When we act or fail to act as a public officeholder standing for re-election, then it is incumbent upon us to understand that a consequence of our decision might be the loss of our public office.
Here in the State of Concrete Gardens, one can file a lawsuit alleging fraud, an action that has five elements the plaintiff (the person filing the lawsuit) must prove, which are (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) a reasonable reliance thereon by the other person; and (5) resulting damages. In New Jersey, although the general rule in a civil action is that a plaintiff's burden of proof is the preponderance of the evidence standard (is something more likely than not), in an action alleging fraud, a plaintiff must prove each of the five elements by clear and convincing evidence, which is a higher, more stringent burden of proof (although not as high as "proof beyond a reasonable doubt", which is the State's burden in criminal matters).
Thus far, in spite of the repeated allegations of "a fraudulent election", neither Mr. Trump nor anyone acting on his behalf has provided any demonstrable evidence of any widespread, systemic malfeasance and I would not hold my breath waiting for any of them to discuss the exploits of Joshua Macia and Antonio Lamotta, from Chesapeake, Virginia, both of whom the Philadelphia Police Department arrested on Thursday night upon their arrival in the City of Brotherly Love, where they had driven (while armed, because hey why not) to deliver a truck full of fake ballots as a countermeasure to the ballots being counted at the Convention Center.
Elections happen and upon the completion of the vote count, a winner is declared. While it is certainly not extraordinary for a defeated candidate - and even perhaps even more understandable when that defeated candidate is an incumbent - to express dismay at the result, it is extraordinarily dangerous and reckless for that incumbent to stand at a podium as the President of the United States and declare - without evidence - the process by which this nation elects its President is a fraud.
If you or I want to sit on a bar stool at closing time and unpack our lamentations and outrages, that is one thing. "We wuz robbed!" is engrained into the lexicon of every person who has ever rooted for a sports team and shouted from the ramparts when we believe the occasion warrants it. No one really cares what we say. We are a partisan. We are a fan. We are blowing off steam. We need not come forward with evidence to substantiate our outrage. Our words really do not matter.
Words matter when you are the President of the United States. When your words attack without any supporting evidence the fundamental structures of a nation whose laws you have taken an oath to uphold and to protect, they absolutely and unequivocally matter. And if you, as the President, neither acknowledge nor appreciate their power, then you have unwittingly proven the propriety of the voters' decision.
After all, the job you hold, which carries with it power and authority unmatched by any other, is merely a temporary job, as it was for those who preceded you and as it shall be for those who follow you.
It is a temporary job in which you work for us, the people of these United States, and in which you serve at our pleasure.
-AK
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