Skip to main content

The Presidential Election, “Fraud,” and the Supreme Court: Everything You Need to Know

By December 8, 2020Trump

Attorney and CNN Legal Analyst Shan Wu is often invited on to CNN to offer his take on contemporary politics. As a former federal prosecutor and current defense attorney at DC Student Defense, Shan provides legal analysis on a variety of topics.

On November 28 — almost a month after the 2020 Presidential Election and Justice Amy Coney Barrett joined the Supreme Court — Shan was asked to discuss some of these judicial goings-on.

You can watch the whole CNN clip on YouTube here

A federal judge in Pennsylvania seemed frustrated by Trump’s lack of allegations and evidence. What does this mean?

Shan responded that Judge Matthew Brann of the US District Court in the Middle District of Pennsylvania was just the latest in a series of judges who are fed up with the Trump team’s weak legal arguments. 

As he has said on CNN before, Shan reiterated that it was time for the Trump legal team to “put up or shut up, and they haven’t done either.”

Judge after judge has rebuked Trump’s legal team for not having any actual evidence, Shan continued, noting that even their claims are inconsistent. On the one hand, President Trump and his attorney Rude Giuliani (“the so-called mastermind”) have both publicly talked about fraud, and yet Giuliani has also publicly said this is not a fraud case. 

There are roughly 30 legal cases that have basically fallen apart for president Trump and his team. Why are his lawyers and President Trump himself continuing to put up a fight? 

Shan responded that he doesn’t believe Trump and his team have a legal path. The President’s motivations, he noted, may really be political or face-saving, but his lawyers are really getting themselves in the hot water. The attorneys could be sanctioned for these weak claims, or for bringing frivolous lawsuits — and Shan believes that they should be. 

Some of Trump’s lawyers have made very disparaging statements about the courts, even going so far as to call the Pennsylvania judiciary an “activist machine.” Shan noted that if any other lawyer, including himself, was to go out in front of the courthouse steps and say that about a case, they’d find themselves right back in the court facing sanctions, as well as probably a gag order.  

Switching to the Supreme Court, there was a ruling against New York’s restrictions on religious gatherings. This was really the first significant indication that the power dynamics of the Supreme Court have shifted. There also seemed to be some bitterness or anger in the opinions written by the judges. What do you think?

Shan responded that this decision was really remarkable because it was an opinion striking down the New York restrictions on COVID-19, saying that it violated freedom of religion. 

It was an unsigned opinion, written for the court as a whole by an unidentified justice. Shan noted that this is also remarkable, since typically the court doesn’t speak with a unanimous voice.

It seemed as though the Court wanted to make it seem like this decision was not a big deal or wasn’t a big important opinion. Instead, Shan said, it generated as much controversy as any major opinion does, and in many ways it is a major opinion, seeing it’s the first one that shows the new extreme conservative majority with the addition of Amy Coney Barrett. 

Shan additionally pointed out that Chief Justice Roberts was more or less pushed off to the side. He voted with the liberal portion of the court, dissenting, and implying this was a rash decision. This case can definitely be viewed as a herald of things to come.

Could this also be a sign of Chief Justice Roberts’ influence on the court now?

Shan agreed that Chief Justice Roberts has moved away from being the center of power to possibly being in the liberal wing of the Court — not because he’s a liberal, but because he’s trying to stay more moderate. 

Justice Neil Gorsuch, who Shan has great personal respect for seeing as they’re in the same office, came out rather harshly. Shan says that he attacked the New York edict as being “a color-coded executive edict” that the Constitution would not tolerate. 

Shan believes the ideology really shows through in this case, and despite Chief Justice Roberts’ efforts to keep the court perhaps more in the middle of the road, it may be that he’s going to end up on the losing end of that more often than not.