Clinton Lawyer Marc Elias

An hour before the deadline for doing so expired last Friday in Wisconsin, Hillary Clinton's campaign general counsel, Marc Elias, joined a recount filed by Green Party presidential candidate Jill Stein. The Clinton campaign's top lawyer, hinting that the filing ultimately would prove futile, nevertheless wanted supporters to know they were leaving no stone un-turned.

With deadlines approaching this week, Mr. Elias indicated the Clinton campaign also would file challenges in Michigan and Pennsylvania. The central focus of the Clinton campaign was to use the opportunity to scan for any improprieties in the vote-count that could point to vote tampering by Russian hackers; a news story during the campaign that would not die.

Vote Recounts, Challenges and Audits

With Clinton winning the popular vote by more than 2 million votes and counting, the narrow margins in all three so-called swing-states [just over 100,000 votes] are ripe for thorough review due to their crucial impact on the electoral college.

Even Clinton's own campaign, however, admits that no evidence of hacking or other impropriety has been demonstrated. President Obama indicated the 2016 election was free of any outside interference. President-Elect Trump characterized the re-count effort in a Twitter rant as "ridiculous" and a "scam", claiming Clinton only won the popular vote because so many people voted illegally.

Elias used the occasion to post an essay to the website Medium, touching on themes of foreign interference, "fake news" and the Russians. Also, Elias explains that as general counsel, he is merely performing due diligence as it pertains to the laws of vote recounts, challenges and audits.

The Electoral College

Five times in our history, the electoral college has selected a president that did not win the popular vote: two of those times occurred this Century, the most recent was this past month. The other time was in 2000; that election was resolved via the SCOTUS decision in Bush v Gore.

All of this has us over here at the Law Blogger re-examining the indirect method by which we select our president through the electoral college.

The electoral college is rooted in Article II of the United States Constitution, as fine-tuned by the Twelfth Amendment. Each state determines how their electors are appointed; each state has a number of electors equal to the number of senators and representatives they send to Washington, D.C. Presently, there are 538 electors.

The modern practice is for each state to elect their respective electors. Each elector gets two votes: one for president, the other for vice president. Each states' slate of electors have their votes pledged to a particular candidate based on the popular vote. A candidate must receive an absolute majority of the electoral votes cast in order to be duly elected president.

All but two states -Maine and Nebraska- utilize a winner-takes-all method of pledging their respective electors' votes: the candidate that wins the popular vote in that state gets all of the electoral votes available in the state. [Instead of the statewide system, Maine and Nebraska use the "congressional district" unit of measurement for determining popular vote elector pledges.]

These challenges will be the proverbial flash-in-the-pan and will, of course, go nowhere. Looming in the fast-approaching distance will be the next constitutional challenge for the POTUS: President-Elect Trump's web of international business interests and their conflicts with the interests of the United States of America.

Post Script 

12/16/2016 - The Russian hacking story is getting legs along with the prevalence of so-called "fake news".

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Increasingly, social media, lenders, and even retailers are obtaining cell phone numbers as a way to track individual consumers. A 10-digit cell phone number is becoming a number, like a social security number, that stays with you for life.

Unlike a social security number, however, there are no federal or state privacy laws preventing its dissemination. So the numbers are disseminated; used by companies to track consumers' conduct such as what shows we watch, what products we purchase, and even what sites we visit on the Internet.

Particularly for Millennials, there are two sets of numbers that follow them through their lives: their cell phone number and their social security number. Most Millennials have never set-up and maintained a land-line telephone account.

The combination of a cell phone number and name is more valuable to marketers than a social security number. This is because cell phones are now connected to so many databases and because individuals almost always have their cell phone with them; in their hands and operational.

Just as with your social security number, cell phone numbers are increasingly used to facilitate identity theft. On the other hand, your cell number is also used for fraud prevention. Many banks are using customers' cell phones to text a security code when the customer needs to change their password. Also, some credit card companies and other payment services such as PayPal are using cell phones to text temporary PINs to digitally confirm the purchaser's identity and prevent fraud.

Some customers are downloading innovative apps on their cell phones that all the company to track all of their daily activity: web sites visited, calls made, contacts stored etc, in order to assess them as a credit risk and potentially extend a loan. Not conventional, but convenient. For someone with a poor credit rating, they forego privacy for the convenience of a small loan.

Take care when providing your cell phone number to a company. When you do, you give up a significant slice of your privacy.

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Ever demure, Michigan Supreme Court Chief Justice, Robert Young, Jr., the highest elected African-American in our state government, stated he was unaware of his inclusion on a short-list for President-Elect Donald Trump's consideration to replace former Justice Antonin Scalia at the SCOTUS.

Justice Young, along with fellow Michigan Supreme Court Justice Joan Larsen, were included in Trump's May and September announcements regarding potential SCOTUS appointments. Both Michigan Justices are members of our High Court's conservative block.

Over the years, this blogger has had several occasions to interact with Justice Young. Most recently, when I argued a 4th Amendment search and seizure case at the Michigan Supreme Court last December, it was Justice Young that did most of the questioning. Back in 2008, I shared a panel with Justice Young on the topic of one of my felony-murder appeals that also made it to the Supreme Court.

As part of the Michigan High Court's conservative block, the justices are among those who take a textualist approach to both the Michigan and the United States Constitutions. This means that they decide cases in accord with the precise meaning of the text of the constitutions and the statutes impacting the case, rather than in accord with their own personally held political beliefs.

Deceased Justice Scalia was the textualist-in-chief; he deplored the judical activism which has been a hallmark of the liberal block on the SCOTUS. One of Trump's avowed first orders of business will be to fill the vacancy on the Court to restore the 5-4 majority that has held sway over most of the past decade.

In our opinion, Justice Young would be a well-qualified appointment; an appointment, however, that seems unlikely amid the clamor in the nation to appoint an ultra-conservative federal jurist to the SCOTUS.

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The Donald

Just as our historic and contentious 2016 presidential election draws nigh, so does the federal class action fraud trial against Republican nominee Donald Trump. On Wednesday, November 9th, our nation will have a president-elect that either: a) is a defendant in a federal class action fraud trial scheduled to commence later this month, or b) is the subject of an on-again-off-again FBI investigation for mishandling classified documents. As we head to the polls on Tuesday, take your pick.

The case against Trump and his, er, University was filed back in 2010. The class action plaintiffs in the suit, filed in the Southern District of California, summarize the nature of their action as follows:

Trump University markets itself as a University driven by the mission to "train, educate and mentor entrepreneurs on achieving financial independence through real estate investing." It is anything but. In fact, rather than serving its students as a university or college, Trump University is more like an infomercial, selling non-accredited products, such as sales workshops, luring customers in with the name and reputation of its founder and Chairman, billionaire land mogul Donald J. Trump. Trump and his so-called University promise "mentorships", urging customers that it's the "next best thing" to being Donald Trump's next "Apprentice". But as class members quickly find out, all Trump University provides is empty promises. The primary lesson Trump University teaches its students is how to spend more money buying more Trump seminars.

Over the past six-years, the high-powered lawyers on both sides of the litigation have conducted tortuous methodical discovery, leading to nearly 600 docket entries and a much adjourned trial date now scheduled for November 28, 2016.

How does a class action case get to be six-years old in federal court without going to trial? Old school aggressive lawyering.

For their part, Trump's New York City law firm, O’Melveny & Myers, has deployed its usual strategy for their famous client: delay, adjourn, and continuously file aggressive motions and counter motions to sand down the plaintiff until there is nothing left to try, or the plaintiffs' money runs out.

By all indications, however, this strategy will not be effective in getting yet another trial adjournment in this class action fraud suit. Judge Gonzalo Curiel has indicated that the trial will proceed, regardless of the election results.

Thus, if Trump wins the election, we here at the Law Blogger wonder, will president-elect Trump attend his own fraud trial? At that point, we predict that he will not be bothered by such an irritating appointment. 

On the other hand, like Hillary Clinton's Weiner-tainted email fiasco- it is a mess of Trump's own making that will not go away, regardless of the heights to which he ascends. If it does not settle, the trial likely will grind-on in 2017, as scheduled, with the Donald in absentia.

A raft of pretrial motions were filed by Trump's lawyers on Monday, including newly disclosed exhibits and witnesses. Plaintiffs filed a motion to strike all undisclosed witnesses and exhibits.

One week from today -two days post-election- Judge Curiel will decide both sides' pretrial motions. Also, he is expected to endorse the firm trial date of November 28th. We'll see about all that.

Plaintiffs, as a class, have the burden to establish that Trump violated a series of California consumer protection laws, and committed negligent misrepresentation, false promise, and fraud relative to the real estate seminars. While most folks would be skeptical about parting with more than $35k for something masquerading as a trumped-up "University", the trial will be about the classification and meaning of the word "University".

Words and classifications do have meanings and consequences. Just ask Secretary Clinton about the meaning of the word "classified".

In dealing with this fine American mess, perhaps Judge Curiel will take a corpus linguistic approach to the series of opinions and orders he is about to unleash.

Post-Election Post-Script.
Just as fast as he is walking back much of his campaign rhetoric -to the chagrin of his more fervent supporters- President-Elect Trump also finds himself doing things in court that he detests and that he derides other businessmen and lawyers for doing: settling a lawsuit.

Trump has agreed to pay $25 million to settle cases against his now infamous Trump University. Twenty one million will go to about 7000 class action members and $4 million goes to the New York Attorney General for violating state education laws.

So Mr. Scorched-Earth Litigator becomes Mr. Settlement. Now there is talk that Trump is considering settlement in many of the other 75+ civil lawsuits filed against him; no one knows the exact number of suits.

Thus Trump joins the good company of Theodore Roosevelt, Harry Truman, John F. Kennedy, and William Jefferson Clinton: Presidents who were sworn-in with the baggage of a lawsuit. All but Clinton settled their respective suits. Clinton's went all the way to the SCOTUS which held in Clinton v Jones that a sitting president is not immune from civil litigation. Who could forget Clinton's bottled rage when he appeared for his 4-hour deposition in the Paula Jones case.

At a minimum, the remaining cases are going cost Trump millions. We shall see if any of the cases has the traction to evade settlement and force a sitting president into a civil trial. That would be a first.

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