No Lie with Brian Tyler Cohen - Trump’s big Supreme Court play goes up in flames

Episode Date: December 13, 2020

The Supreme Court swats down the big Texas-led lawsuit seeking to invalidate the election results and Republicans in Georgia begin weaponizing fake voter fraud claims. Brian also interviews Michigan’s attorney general Dana Nessel about the lawsuit on her state’s election and whether those who participated in the suit could be removed from office for violating their oaths.Written by Brian Tyler CohenProduced by Sam GraberRecorded in Los Angeles, CAhttps://www.briantylercohen.com/podcast/Visit votesaveamerica.com/georgia or votesaveamerica.com/getmitch to do your part for Georgia's Senate runoffs.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Today we're going to talk about the Supreme Court swatting down the big Texas-led lawsuit seeking to invalidate the election results, what should happen to the GOP lawmakers who signed onto it, and how Republicans in Georgia are weaponizing fake voter fraud claims. I also interview Michigan's Attorney General Dana Nessel about the lawsuit on her state's election and whether those who participated in the suit could be removed from office for violating their oath. I'm Brian Tyler Cohen, and you're listening to No Lie. The top story this week is that the big lawsuit that Texas Attorney General Ken Paxton brought to the Supreme Court where he targeted the election results in Michigan, Georgia, Wisconsin, and Pennsylvania

by claiming that their mail-in voting efforts were unconstitutional was rejected by the Supreme Court. The 6-3 conservative court, the court that Trump quite literally admitted that he needed to get Amy Coney-Barrant confirmed onto so she could rule on this exact issue. Not only was it rejected, the court refused. to even hear the case and not a single justice publicly dissented. Not Gorsuch, not Kavanaugh, not Amy Coney-Barritt. Very on brand for Trump to get a bad return on his investment. As for the Trump team, when the ruling came down,

they graciously accepted it and promised to move on for the good of the cunt. No, no, sorry. I'm looking at the wrong notes. They actually vowed to continue fighting it in the courts because, of course. Here's Rudy Giuliani and Jenna Ellis, Two prominent figures in Trump's legal dream team who combined have won zero cases thus far. The case wasn't rejected on the merits. The case was rejected on standing. So the answer to that is to bring the case now in the district court by the president, by some of the electors, alleging the same facts where they would be standing and therefore get a hearing because the worst part of this is basically the courts are saying they want to stay out of this and they don't want to. They don't want to give us a hearing. They don't want the American people to hear these facts.

And I think that's a terrible, terrible mistake. So the fact that they're saying that Texas and these other states who have now joined don't have standing, I think, is a ridiculous political posture and is simply trying to say we're going to decline to hear this on the merits based on some procedural, just whim that they can kind of try to push this off. And I don't think that that was the appropriate constitutional decision. And even if they had heard this on the merits and then ultimately decided the outcome differently than what we would have preferred and what the U.S. Constitution stands for, I think that they should have given Texas and all of these other states their day in court. Here's the craziest part. Ellis and Giuliani are basically claiming here that, okay, the ruling was procedural and not on the merits, meaning that Texas lacks standing to even bring the case to prove that it had an interest in how another state or states conduct their elections. But here's the thing.

That's of their own doing. They were the ones who deferred to what's called original jurisdiction to go straight to the Supreme Court because let's be honest, they thought that Kavanaugh, Barrett, and Gorsuch, Trump's appointments, would rule in their favor. That's it. They thought they could skirt the rules and get an easy win by getting in front of the court that Trump himself had just packed with conservative justices. It's no secret. Trump literally admitted that's why he wanted to get Amy Coney Barrett onto the Supreme Court as fast as possible. But now, suddenly the plan to subvert democracy by appealing to the lackeys didn't work out. And the new plan is, oh, hey, on second thought, maybe we'll go to the states and try to get this thing done in the district courts.

Because when you try to cheat the system, that's what you get. And by the way, this is going nowhere in the state courts either, all of which have ruled relentlessly against Trump and his allies, who are now one for 58 in the courts. Which is all a long way of saying that as far as the courts are concerned, this thing's cooked. But here's who my beef's with here, besides Trump, because Trump's despotic fever dream is no secret. My beef is with the 126 Republican lawmakers and the 18 attorneys general who signed onto this seditious lawsuit in the first place. A lawsuit so anti-democratic, so egregiously un-American, that a 6-3 conservative court stacked with Trump's own appointments wouldn't even hear the case. My beef is with the fact that two-thirds of Republican lawmakers in the House and a third of the states AGs would put their names on a document arguing that millions of votes be nullified simply because they're not happy with the election results because their guy didn't win. It goes to show that all these years of hiding behind their platitudes of being patriots about the Constitution and Law & Order and Our Founding Father, they didn't care about any of that.

They care about power, period. So here's what I think we should do. Don't seat them. Don't seat those Republican lawmakers in this next Congress. Republicans from all four of those states literally signed on to a lawsuit that would invalidate their own elections. If they're actually serious about thinking the election

that they themselves won isn't a valid election, then how in the world are you going to let those people then serve? They can't. And they'd be the first ones to tell you that, right? Clearly, they're not about letting those chosen in unconstitutional elections just take an unearned seat in Congress. But of course they'll be seated because this isn't a serious lawsuit and they're not using serious logic.

They are just grown-ass men throwing temper tantrums because they're pissy that their guy didn't win. That's it. And the fact that those reps in PA and Wisconsin and Georgia and Michigan will show up and put their hands on the Bible and take their seats at the start of the next Congress without a concern in the world is all the proof you need that, A, these are theatrics. And B, these people don't actually stand for anything. But what they will have is a legacy forever stained by this lawsuit, all for a 12-hour fever dream of hoping that they could undo a free and fair election. And I truly hope that hanging this albatross around their necks was worth it for them because that'll be their legacy for the rest of their lives.

But going back to Trump's disinformation campaign, while it's half-life in the courts is clearly over, that's not to say that it's not having consequences elsewhere. In Georgia, Republicans are basically weaponizing Trump's fake claims of voter fraud into real voter suppression. They vowed to roll back vote by mail to close polling places, to launch probes into progressive voter registration groups. One of the groups under scrutiny is the New Georgia Project, which was founded by Stacey

Abrams and has been chaired by Senate candidate Raphael Warnock until February. Republicans are claiming that the group was sending voter registration applications to New York City, which the CEO of the organization called, quote, flimsy as hell and said, quote, their evidence is thinner than a single strand of hair, which seems to be a recurring theme for the GOP. And now Republicans are looking to impose new restrictions like, like voter ID requirements being extended to mail ballots, banning drop boxes, and making it easier to reject mail ballots. Why?

Because there was record turnout that led to a Democratic win. That's it. Republicans can't get over the fact that they might have to, oh, I don't know, be better in order to win elections. And so instead, they're just going to make it so that people who won't vote for them don't get to vote at all. So when you ask yourself what the point of all these baseless fraud claims is, this is it. You don't need actual fraud. You just need the suggestion of fraud to justify a whole wave of new restrictions to solve a fake problem.

They'd rather weaponize disinformation to jumpstart voter suppression than acknowledge that it's disinformation. For the 10 millionth time, this is a party that is fundamentally at its core opposed to debate. democracy. So what we're in desperate need of is a voting rights act to counteract so much of the blatant, anti-democratic moves by the right. Not even undemocratic, anti-democratic. They are actively against democracy. And the only way to get a voting rights act is to take the Senate. And that starts, ironically enough, in Georgia, where those very voter suppression efforts are about to take hold. I know that the most important election of our lifetimes was five minutes ago, but this is the new most important election of our lifetimes. So much relies on the very important election of our lifetimes. So much relies

on taking the Senate, on fixing a democracy that is so blatantly teetering on the precipice. So do one thing. Go to go to ga-a-senate.com. Go to fairfight.com. You can find opportunities to donate, to phone bank or text bank, to offer legal services, to observe the polls in person, to offer in-person voter protection, to do in-person voter contact, whatever you choose, choose something. Because a lot is at stake, and we have the power to change it. Next up is my interview with Michigan Attorney General Dana Nessel.

Okay, today we have the Attorney General of Michigan. Dana Nessel, thanks for coming on. Thanks for having me. So the Supreme Court has rejected the Texas-led effort to invalidate the election results in four states, including yours, Michigan, Pennsylvania, Georgia, and Wisconsin. So first off, what's your reaction to the decision? Well, obviously, I'm grateful that the Supreme Court ruled in a manner

that doesn't disenfranchise the 5.5 million people who voted in my state and really the 10 million people who lived. in the state of Michigan will be properly represented in the electoral college. But honestly, I'm more sad than I am relieved because I can't believe that we even got to a place in our country where another state would dare try to undermine the election in another state.

And I can't believe that there were 18 other attorneys general that supported that effort and some 128 members of Congress, not to mention the 15 state reps here in Michigan. that supported the effort to overturn the election of our own constituents, our own state residents. I'm baffled by it. I'm saddened by it, but I'm really hoping that the country can move on at this point. Yeah, I got to ask, what do you think Texas would say if you, as Attorney General of Michigan, tries to invalidate Texas's election results? Yeah, you know, I was looking at the statement by Attorney General Ken Paxton of Texas.

last night and you know he he talked about well if only michigan would have properly followed state law federal law and the constitution we wouldn't have had to done that and i thought to myself personally every court every court that uh where this has been challenged in michigan uh whether it was state courts or federal courts whether these were judges that were appointed by democrats or Republicans, each and every one of them upheld how Michigan handled their elections. But secondly, I take issue with a lot of things that Texas did during the course of the election, especially leading up to it. It was massive voter suppression on an enormous scale, especially the limiting of drop boxes

to one per county, even for Harris County that had over 4 million residents. and we didn't do things right in Michigan? I mean, it's not just that that is so offensive on every level. But I also want to say, I couldn't even imagine for other states, I mean, for our state, which is a swing state, and, you know, in 2016, went for Trump and now 2020 went for Biden. Could you imagine if, you know, next time we were to elect a Republican for the office of president, if Massachusetts or California or New York said, we don't like the way you've been. So now we're going to come in and try to overturn that election. I mean, what kind of precedent would we be setting in the United States of America and what would be left of democracy? Yeah, yeah.

I mean, I think if Michigan were to ever intervene in Texas's election results, Ted Cruz would be on a soapbox so fast that the earth would fall off of its axis. So Trump's legal team, though, through all of, you know, their respective bouts of coronavirus, have already come out and said that they plan to bring these issues. to each state's respective district courts where they'll have standing. How do you anticipate that these cases are going to play out? All the claims that were made have already been made in our district courts. So even if they were granted standing, it's already been decided. And also, it's not just that each and every one of the claims that were made in the Supreme Court filing were already made in our district courts, but it's too late. And that was one of our arguments was latches, you know, it's too late to bring these claims.

In fact, one of the claims that was, again, already went all the way through our court system involved the fact that our Secretary of State had sent out absentee voter applications, not ballots, as has been suggested erroneously many times, but applications, simply because in 2018 we passed no reason absentee ballot voting, and she was sending out these applications for any already registered voters who wanted to take advantage, especially during the pandemic, of their newfound constitutional right to vote absentee. So we were, you know, the secretary of the state was sued for that. We defended her, and we already won on that matter.

And so now, and that happened well before the election, and it was not challenged by Texas. So why would they challenge that now when it occurred, and again, we already successfully defended it, they didn't sue them. So why would they be suing now? What gives them the right to do that? And especially, you don't get to wait and see if Michigan votes for your candidate or not. And then when Michigan decides otherwise say, well, now I'm going to sue you because I don't like what you did months ago. Right, right.

And by the way, if you bring a case that's basically identical to a case that you previously brought, is there anything blocking you from being able to do that? Oh, well, I think that essentially the court that it's filed in could say this matter has already been decided and an issue and opinion of that nature. And then, of course, I think it would be in any of the appellate courts, they would immediately say, you know, we're not going to accept this. But I also think it, you know, in that case, I would absolutely ask for sanctions and attorney's fees and court costs in the event they did that. Yeah. And I do want to get to that point. shortly, but I just want to touch on one more issue here. And that is most of what I do through my

videos and the podcast is debunk bad faith talking point. So I want to go over some of the purported claims of fraud that we've heard. We can do something of a lightning round here. So were ballots cast from dead voters in Michigan? No, absolutely. They were not. There are some votes that were cast by people who were alive, but then died between the time period of them casting the vote and being received. But all of those votes did not count because there's a process that Secretary of State has in place to identify anybody who's died. And that basically comes from all the medical examiners around the state and any of the lists of people who have passed away. So those people voted. They were alive. Many of them sadly probably died of COVID

because we've had so many deaths in the interim period. And then their votes were discarded. So that's factually inaccurate. Were batches of ballots counted eight to ten times? Absolutely not. Has there been any type of an audit since the initial election? There is going to be an audit. It's been announced by our secretary, and there is some sort of audit that is required under law irrespective, but it happens after certification, not before certification,

which is what many people were asking for. But my understanding is that the Secretary of State has decided to expand the audit, and she specifically wants to focus in on any of the areas where these claims were made, even though they've been widely debunked, she's going to make certain that everybody knows exactly what happened. So for historical purposes, or at the request of the legislature in Michigan, or anybody who's curious, they can see exactly what happened in those areas. And I'm sure when the audit shows up the same number of votes that were counted originally,

that will also lend itself to debunking the claim that the batches were counted eight to ten times. Were observers prevented from watching ballot counts? at the TCF Center. No, that's not true at all. There were some numbers that were put in terms of limits because of COVID restrictions, but there were, you know, I don't know the exact number, but I want to say it was over 100 Republican observers and poll watchers that were in there. But the problem was you had our state GOP chair woman who sent out something saying,

you know, flood the TCF Center. And then you had hundreds and hundreds of people that were trying to, who were being disruptive and we're trying to break into the room. And we already had the COVID restrictions to begin with. So you couldn't have an unlimited number of people in there. And also they're being very disruptive. So that's not true at all. And in fact, each and every media outlet that was present. And there were dozens of them have refuted that. And they have video footage of that. Is there any evidence that Dominion voting systems or any other voting systems vendor is compromised? None. None whatsoever. And in fact,

The example we keep hearing over and over again in Antrim County, firstly, that involves a Trump-supporting Republican clerk who conceded that it was human error. She made an error. She didn't properly upload some of the software. And as a result, that's why there was an error. But they caught it right away. They had caught it within 24 hours.

And that's what the canvassing process is about. She caught the error herself, which was then, you know, again, it would have been caught by the, you know, the locals, then the clerks, at the county level, and then at the state campus level. I mean, there's multiple layers of review. And within 24 hours, they knew that there was a mistake and they fixed it. So on a scale from 1 to 10, what's the likelihood that Hugo Chavez interfered in your race? In your state, I mean, I know that you can't speak on what he did in Georgia, Wisconsin, or Pennsylvania.

Well, given that he's dead, it's hard for me to predict what he's done from beyond the grave. I will tell you sometimes I'm doing my laundry and I'm missing socks. And I wonder, you know, did he go Chavez somehow play a role in my missing socks? Or the CIA, the DOJ, Brad Raffersberger. Yes, any of those things. No, but I mean, you know, we're laughing because of the ludicrous nature of these allegations. But then you remember that these were attorneys representing the president of the United States that went into state and federal courts and actually made these arguments.

And more than being entertained, I think we should be a little bit sad. And I will say this, of course, as I was watching our House Oversight Committee, have this preposterous hearing on the election and have Rudy Giuliani, COVID and all, come in and present his witnesses. As I was watching it, I actually leaned over to my wife and I said, you know what, this would make an excellent Saturday Night Live skis. it. And then sure enough, it turns up, you know, it is the cold opening for SNL. And so there was part of me that, you know, was like, I was right. Other people do find this to be hilarious.

But then there was part of me that thought, what a mockery that our state house has now, such a joke, is so ridiculous in nature that it can actually be parody on a national sketch show. What other state legislature have you ever seen on SNL? And it made me, It made me sad, wasn't anything. Yeah, and, you know, time will tell if that's going to, if that's going to be anything of a wake-up call. But I actually do want to build on what you were just saying. The people who signed onto the lawsuits, you know, from around the country in the 18 different states, the 126 Republican lawmakers, they swore an oath to defend the Constitution.

Is there a world where publicly or in court working to undermine the law that they swore to uphold, undermine the Constitution that they swore to protect, is a breach of their oath of office? that they should be subject to removal? Well, I do think it's a breach of their oath of office. They, as you indicated, they upheld to support, to defend and uphold the constitution of their own states and also of the United States of America. I guess in the words of Thomas Jefferson,

you know, they perverted the principle of on which our democracy was founded and in peril its very existence. I truly believe that to be the case. I think that the way to hold them accountable will have to be at the ballot box. I just don't see a scenario where people are prosecuted for that or they lose their offices.

I think that will be a matter for their constituents to decide whether or not they ought to retain those offices when they are up the next time. And certainly if I was running against any of them, and I might be, who knows who's gonna run against me in 2022, I would make that argument that to subvert the Constitution the manner in which they did that to undermine the very foundation of our democracy is a despicable act and it's unworthy and beneath the dignity of their offices. But, you know,

I don't see any other remedy other than ensuring that they are never again elected in the officers, offices in which they serve. Yeah. So in your opinion, are the deluge of lawsuits actually about winning this litigation in court or just continuing to perpetuate? a disinformation campaign surrounding election fraud? I think it's the latter. I do think that anyone who is a serious attorney knows that they don't stand a chance with these lawsuits. These claims are ludicrous.

They're factually inaccurate. Let's start with that. They're also ridiculous legal claims that they're making. So it's both of those. So I have to believe that most of this is an effort to appease the emperor so that he doesn't then come out against whoever these individuals are that are bringing those claims or to, and dear, dear leader to them. I mean, I can't think of any other legitimate legal premise behind it, but, you know, it's just, it's so sad. And this is why I think that, at least on the legal side,

there have to be repercussions for these attorneys because they really are violating the rules of professional conduct. When you submit an affidavit and you know that it, is a factual misrepresentation, there should be penalties. And I think that we can't allow this to continue and say, well, but it's on behalf the president. So it's okay. When if it was on behalf of just a regular private person, there would be sanctions involved. And literally, you would have a situation where, at least in Michigan, there would be a complaint and it would go to the attorney grievance commission, and that person could be disciplined. They could even lose their law license. It shouldn't be any different just because you're representing the president

in the United States. Right. And by the way, these people have gone into court presenting their affidavits, a lot of which they admitted to the judge were spam. And so, and the same process that they used to get the spam affidavits were the process that they used to get the affidavits that they then presented to the court. So, you know, they've proved that the process that they used was fundamentally flawed. But you can't go into court and knowingly lie to a judge. So, I mean, aren't these people subject to discipline and losing their law license for going in and making these claims that there was, you know, non-existent fraud and any other, you know, bogus claims that they brought forward? I think they should be. I think we should all be held to that standard.

And that's why these lawsuits on behalf of the president have so deeply undermined yet another institution, which is our legal system. There are so many other areas, of course, where we've seen that in terms of our intelligence and, you know, and defense administration in the country where people have no longer, they don't have faith in the Department of Justice, they don't have faith in the FBI or the CIA. They don't have faith in our various, you know, in our state department or many of our federal agencies. And now they don't have faith in our court system either. And it's just, that's how much Donald Trump has done to erode confidence in the institutions which found, you know, which are the basis of everything we have in the United

States of America. And I can't believe how much damage he's done just in four years' time. Yeah. What we're seeing now is these Republicans around the country using these fake fraud claims to then enact real voter suppression. So in Georgia specifically, Republicans are already moving to require voter ID for mail ballots to get rid of no excuse mail voting to ban dropboxes, to make it easier to reject mail ballots. If this happens in Michigan, and I know that you don't have a say from the legislative side, but from the legal side, A, do you anticipate this,

and B, is there anything you can do to stop it? Well, fortunately, I don't have to worry about that because our governor's name is Gresham Whitmer, and she's got a veto pen, and she's not afraid to use it. So that's not going to happen in the next couple years, even though we have a Republican legislature that I think would be happy to enact those voter suppression reforms. And in fact, they were very resistant to some of the things that would have made this

much easier. So, for instance, one of the things that even the Speaker of the House was a very, very big Trump supporter, he indicated they should have allowed the ballots to be counted early, just the same way they do in Florida and Ohio. Now, you don't know the Republicans saying there was widespread voter fraud in Ohio or Florida simply because Trump won there. So, of course, everything must have happened perfectly. And according to plan, just because he was the winner, But that's the kind of thing where you wouldn't have to, so many of these other issues that we had in Michigan were simply because the legislature refused to enact these very, very simple changes to process. So, you know, I'm hoping they'll do that, but in terms of them making it more difficult to vote, you know, at least for the next couple years that can't happen. Fortunately, I feel bad in the states where we do see it happening because, you know, if you really care about democracy, then you want to.

as many people as possible to participate. It's only, I guess, if you're in the minority that you need to disenfranchise voters to stay in power. Yeah. And unfortunately, that's not even just a theoretical supposition. We're seeing that on a daily basis play out. The last question I want to ask, though, is, you know, we did see, speaking of Governor Whitmer, we saw this heinous kidnapping plot against her thwarted. At my last count, I believe that there were 14 people who were arrested and charged. Can you give the latest on that case? and the message that you're looking to send? Right.

Well, so eight of those cases are state cases that are being handled by my office. The other six are being handled by the federal authorities in the Western District of Michigan, the U.S. attorney there. The cases are moving forward. Unfortunately, most, if not all, I think of the state defendants are out on bond. The judges reduce their bonds significantly, and that is a bit of a concern. I would say, but those cases are moving forward to preliminary exams and then later, hopefully they're bound over and scheduled for trial. Everything is much, much, much slower in the criminal

justice system because of COVID. You know, court is being held mostly remotely. It's very hard, by the way, to cross-examine witnesses and so when you're doing it over Zoom, but certainly it's impossible to have a jury trial. You have to have a jury trial in person. So all of our cases are going much slower than we would like them to. And I look forward to widespread vaccination being cured of that and being able to move forward more quickly with all of our cases. Yeah. All right. Well, Attorney General Nessel, thank you. Thanks so much for taking the time. I really appreciate it. Thanks for having me. Thanks again to Attorney General Nessel. That's it for this episode. Talk to you next time.

You've been listening to No Lie with Brian Tyler Cohen. Produced by Sam Graber, music by Wellesie, interviews captured and edited for YouTube and Facebook by Nicholas Nicotera, and recorded in Los Angeles, California. If you enjoyed this episode, please subscribe on your preferred podcast app. Feel free to leave a five-star rating and a review, and check out Brian Tyler Cohen.com for links to all of my other channels.