#LookingBack: Litigate On (Sam Issacharoff)

The following symposium contribution is from Sam Issacharoff (NYU):

I was born in Argentina under Juan Perón.  History has unfortunately given us too many charismatic demagogues, elected to office and quick to turn on every institution that brought them there.  Some are talented public figures, including Perón himself, and some merely symptoms of a society running aground.  The 20th century versions of these demagogues adored Mussolini, Franco and played with all the elements of fascism.  The 21st century ones are less transformative but now find Putin irresistible. 

Perón was never defeated electorally.  He was overthrown in his second term by the military, and then died in office when he returned from exile two decades later.  Peronism still casts a shadow over Argentine governance that has withstood military coups, scandals, hyperinflation, and dismaying economic dislocations.

Will Trumpism become the American Peronism?  Trump is now on his way out.  The departure is and will be noisy, full of recriminations, full of claimed victimhood, all the trappings of a destructive four years.  To be sure, Trump is no Perón.  Perón genuinely raised the aspirations of working-class Argentines and the social commitments of Evita left a legacy that included raising wages and providing guaranteed national health care.  Trump will leave office with a tax cut for the wealthiest Americans and little to show ordinary working people. 

But Peronism tapped a politics of resentment that roils the country to this day.  Perón never had to face the consequences of his irresponsible economic policies and became a martyr for an ill-defined political legacy.  By contrast, Trump lost the election and both before and after tried to torch the system by claiming fraud. 

Much to Trump’s chagrin, something extraordinary happened this November.  In the face of a pandemic, more Americans voted than ever before, the highest percentage in a century.  Because of the number of close states and the laborious process of counting millions of absentee ballots, the process of tabulating the results took place over an amazing five days.  There in front of tv cameras were the unsung heroes of democracy.  In state after state, people could watch their fellow citizens, at table after table with one Republican and one Democrat, counting the ballots.  Hour after hour they labored, almost all volunteers, shoring up democracy at a most difficult time. 

Trump could take to television early on to claim victory, shout about the fraud occurring, and his sons could even call on the faithful to take to the streets.  But on television, citizens saw something else.  An orderly process that was transfixing because it seemed so routine, so ordinary.  By the time the election was called on Saturday, the Trump calls to resist fell somewhere between shrill and silly. 

But now Trump wants to go to court to claim fraud in multiple states.  Please do so.  Challenge military personnel on deployment as fraudulent voters in Nevada.  Pursue a rumor that someone saw 50 illegal ballots dumped into the mix in Georgia.  Claim that 150,000 votes in Pennsylvania somehow were slipped in with no vigilance.  Go ahead.  And, of course, go raise money for putative appeals, but with 50-60 % skimmed off for the Trump coterie.  A grifter once, a grifter always.

The final election margins were narrow but these kinds of election challenges never go anywhere when there are tens of thousands of votes at issue.  Recall that in 2000, Bush was ahead in Florida and was trying to protect a lead against after the fact changes in counting procedures.  The Trump group was so eager to claim fraud, that they could not wait for the election.  All the practices they now complain about were already vetted through the courts before the elections. 

Trump will have to show fraud in state after state, and he will have to provide evidence more substantial than Rudy Giuliani peacocking it for a microphone.  He will be rejected by court after court, as he has been already.  He will not be able to blaspheme about “Mexican judges” and all the nonsense of the past four years.  He will appear a whiner, unmoored and, most of all, a loser. 

For Trumpism not to become the American Peronism, there needs to be a moment of repudiation so that political life may move on.  The election may not have been enough.  Let the lies be tested in courts to ground the lessons in our political psyche.  Our citizens and our democratic institutions deserve respect.  They saved us last week and maybe we need some unfounded lawsuits to reinforce that lesson.  By subjecting his irresponsible rhetoric to legal scrutiny, Trump may finally be performing a genuine public service.


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