Election 2020 Politics

Trump’s lawyers have lots of affidavits. That doesn’t mean as much as it seems.

“We have evidence that we will present to the court,” Trump campaign legal adviser Jenna Ellis said.

“These people are under penalty of perjury,” Giuliani assured again about the affidavits. “Their names are on an affidavit.”

But how much weight do these affidavits carry? And what is their true reliability?

The Trump campaign has repeatedly cited the hundreds of sworn affidavits it has assembled. It has even shown stacks of them to illustrate the supposed heft of its legal case. Many of them are not available because they haven’t been filed in actual lawsuits or made available publicly. (Giuliani cited the alleged targeting of their authors for keeping them obscured.)

But among the witnesses who have had their allegations aired in court, many have been dismissed by judges as inadmissible or not credible. One particularly high-profile one alleged many precincts in Michigan had more votes than actual voters, but shortly after Giuliani et al. raised the issue Thursday — alongside their pleas to take the affidavits seriously — it fell apart.

As the Trump campaign will remind you, these are sworn statements. But according to legal experts, the jeopardy faced by those behind them is relatively minimal.

“There is a remote chance that sworn statements (if they are actually sworn statements — most documents that appear to be ‘sworn’ don’t count within the meaning of the statute) could subject the declarant to some exposure under the perjury statutes,” said Lisa Kerns Griffin, an expert on evidence at Duke University. “But perjury prosecutions are rare and almost never arise from statements outside of the context of proceedings in which oaths are formally administered — such as depositions, congressional testimony, grand jury proceedings, or trial testimony.”

A key issue is whether the affidavit is filed in court, as most filed by the Trump team haven’t been. Beyond that, any false statements would need to be deemed to be “material” to the proceedings — i.e. relevant to the actual claims. And from there, any legal jeopardy would require that the statements made were knowingly false.

In the case of affidavits from election observers, for example, it would be difficult to prove that what they were saying was false, especially in instances in which they alleged other people involved in the ballot-counting process said something to them. In addition, statements from those like the Texas security consultant who mistook data from Minnesota to be from Michigan could be understood as an honest mistake or resulting from a lack of expertise in the subject matter — rather than an outright lie.

The Trump campaign’s affidavits also have a checkered history, to put it kindly. When they have been used in court, they’ve often been cast aside.

One Michigan judge noted that the evidence wasn’t direct evidence, despite the Trump campaign’s contention that it was:

TRUMP LAWYER: Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Connarn, and she has made that statement based on her own firsthand physical evidence and knowledge —

JUDGE: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.

TRUMP LAWYER: Well it’s a firsthand statement of her physical –

JUDGE: It’s an out-of-court statement offered where the truth of the matter is asserted, right?

A similar thing happened in Chatham County, Ga., where the GOP called two witnesses as part of its allegation that 53 ballots received after Election Day were pre-dated to make them appear valid. But under questioning, the witnesses acknowledged they didn’t know whether the ballots were actually received after the deadline, while witnesses for the local elections board testified under oath that they were received on time.

Another issue is just what the affidavits allege. Many filed by the Trump campaign don’t actually allege wrongdoing, but rather refer to alleged issues in the vote counting process. And as The Post’s David A. Fahrenthold, Emma Brown and Hannah Knowles reported this week, many of them have been rather thin:

“Shocking allegations of voter irregularities revealed in 234 pages of signed and sworn affidavits,” the Trump campaign wrote on Twitter.

But a closer look at the affidavits showed that many did not allege any wrongdoing with ballots. Instead, they showed poll challengers complaining about other things: a loud public-address system, mean looks from poll workers, and a Democratic poll watcher who said “Go back to the suburbs, Karen.”

Some poll observers had become suspicious simply after seeing many ballots cast for Democrats — in Detroit, a heavily Democratic city where Biden won 94 percent of the vote. “I specifically noticed that every ballot I observed was cast for Joe Biden,” one observer wrote. The Trump campaign filed that as evidence in court.

In another case, the Trump campaign’s affidavit was described by a judge as being “rife with speculation and guess-work about sinister motives.” The judge said the allegations were “not credible” and found that the people behind them were simply unfamiliar with how the ballot-counting process was conducted in Detroit.

“Perhaps if Plaintiffs’ election challenger affiants had attended the October 29, 2020 walk-through of the TCF Center ballot counting location, questions and concerns could have been answered in advance of Election Day,” Judge Timothy M. Kenny wrote. “Regrettably, they did not and, therefore, Plaintiffs’ affiants did not have a full understanding of the TCF absent ballot tabulation process.”

That result is telling. Many people are involved in the counting of ballots. Plenty of them are dispatched to observe the process on behalf of one party or another. And given Trump’s claims about voter fraud in the months before the election, you can bet those who decided to participate would be on the lookout for anything that might strike them as being problematic.

But many of them didn’t actually say they witnessed or had evidence of wrongdoing. Even the affidavit about alleged over-votes in Michigan merely raises concerns — concerns that appear to be relatively easy to explain, upon a closer examination.

Vote-counting is a complicated process, and the combination of people with little to no training in that process and people with a clear bias toward believing the election was stolen from Trump is a toxic one. It’s just not one that judges have found to be compelling thus far.

It’s also not something that even the many authors of affidavits cited by the Trump campaign truly have to worry about. It’s significant that they decided to make these sworn statements. But contrary to what Giuliani said, most of them make no conclusive allegations of wrongdoing, and many more don’t seem to constitute genuine evidence — according to the judges tasked with reviewing them.

“If he is talking about affidavits that the swearers will submit or that Giuliani will submit as their authorized agent in a judicial proceeding, they would be at risk of a perjury prosecution,” said Julia Simon-Kerr, a law professor at the University Connecticut. “If he’s talking about affidavits he’s collected to waive in front of reporters, but that won’t be submitted in a judicial proceeding, they would not subject the swearers to a perjury prosecution.

“Given the disjunction between what is actually happening in the courts and what he is talking about, I wouldn’t be surprised if it is the latter.”

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