In Bailey, et al. v. United States, et al., docket 16-1464, Petitioners seek two (2) remedies. The second, and broader, remedy is to have the results of the 2016 election declared void ab initio. The effect would be to place matters as though the election had not taken place.
The first, and more immediate, remedy is a request that the Court appoint a Special Master, under the Federal Rules of Civil Procedure, to conduct an independent investigation.
As to the remedy of a declaration the election be declared void ab initio, the burden of proof is quite heavy, as it should be. As one Federal court has held:
[B]efore a federal court can responsibly order a new election, the claimants seeking
this extraordinary relief must come forward with the most clear and convincing evidence that ... persons... intentionally...altered the outcome of the election. A party contesting a Presidential election carries a heavy burden. Not to put too fine a point on it, this standard implies conduct of a most egregious nature, approximating criminal activity. Donahue v. Board of Elections, 435 F.Supp. 957, 968 (E.D.N.Y. 1976).
The Petitioners seek to set aside the results of an election that was produced by a governmental system under the Constitution that has governed for Two Hundred Twenty-eight (228) years. Two (2) things must be established: (1) Russia interfered with the election; and (2) that Russian interference altered the outcome or results of the election.
The “clear and convincing evidence” standard is high: “Evidence indicating that the thing to be proved is highly probable or reasonably certain; this is a greater burden than preponderance of the evidence, the standard applied in most civil cases, and less than evidence beyond a reasonable doubt, the norm for Criminal trials.” Black’s Law Dictionary, New , 1996, p. 235.
If the first of these two (2) prongs is established—Russia interfered with the 2016 elections, particularly the race for President-Vice President, then there should be an independent investigation to determine if the second prong is met.
What evidence exists that Russia interfered with the election?
In the Bailey case, the named Respondents include Donald J. Trump, Mike Pence, and Paul Ryan. They are “party opponents.” The statement of an opposing party made by the party in an individual or representative capacity is not considered “hearsay.” F.R.Evid. 801(d)(2)(A); United States v. Nixon, 418 U.S. 683, 700-01, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974). Proponents of such evidence need only show by a preponderance of the evidence that the opposing party made the statement. United States v. Brinson, 772 F.3d 1314, 1320 (10th Cir. 2014) (Facebook messages deemed admissible as admissions of a party opponent.)
The three Respondents just named have made statements in which Russian interference in the 2016 elections has been acknowledged.
The broadest admission was made by House Speaker Ryan: The United States Congress has voted to impose sanctions on Russia for Russia having meddled in the 2016 election. Prior to that action, the Speaker of the House, in January, said “of course they did” when asked is Russia interfered in the 2016 election.
The current occupant of the Oval Office has admitted Russia interfered with the election—after, during one Presidential debate, having invited Russian hackers to hack into Democratic National Committee computer servers to obtain former Secretary Clinton’s emails. “President-elect Trump conceded for the first time that Russia was behind the hacking of Democrats during the presidential election, saying at a news conference that, ‘I think it was Russia.’...” Michael Shear, et al., “Trump Says ‘I Think It Was Russia’ That Hacked the Democrats,” The New York Times, Jan. 11, 2017, p. 1; “Just out: The Obama Administration knew far in advance of November 8th about election meddling by Russia. Did nothing about it. WHY?” Tweet, @realDonaldTrump, 6/23/17, 8:43 p.m.; and, “Since the Obama Administration was told way before the 2016 Election that the Russians were meddling, why no action? Focus on them, not T!” Tweet, @realDonaldTrump, 6/24/17, 4:28 p.m. These admissions followed his statement that millions of persons voted illegally in the 2016 general elections. Huffington Post, November 28, 2016.
Mike Pence has acknowledged Russia interfered with the election. In response to a question by host Chuck Todd, on October 16, 2016, on “Meet the Press,” then-Governor Mike Pence “Well, I think there’s more and more evidence that, that implicates Russia...”
These statements are admissions by party opponents.
There is more evidence. Seventeen United States intelligence agencies found Russia interfered in the elections. Various Federal agencies obtained evidence prior to the general election in 2016 that Russia, through cyber intrusions and publication of disinformation, was attempting to influence the outcome of the 2016 general election. (“17 Intelligence Agencies affirm that Russian Government directed Election Interference,” npr.org, Jan. 5, 2017.) Congress found no reason to dispute these findings and noted them in the “Countering America’s Adversaries Through Sanctions Act,” specifically at 22 U.S.C.A. sec. 9501(6): “On January 6, 2017, an assessment of the United States intelligence community entitled, ‘Assessing Russian Activities and Intentions in Recent U.S. Elections’ stated, ‘Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the United States presidential election.’ The assessment warns that ‘Moscow will apply lessons learned from its Putin-ordered campaign aimed at the U.S. Presidential election to future influence efforts worldwide, including against U.S. allies and their elections processes.”
Russian cyber intrusions occurred, via the insertion of malware in computer systems utilized in primary elections and general elections conducted by the state governments of “swing” states, as noted in a joint report of the F.B.I. and the Department of Homeland Security released on December 29, 2016 (see, “GRIZZLY STEPPE - Russian Malicious Cyber Activity,” www.us-cert.gov/sites/default/files/publications/JAR_16-20296A_GRIZ...). eople fondly deny reality.
There is hardly room for doubt that Russia interfered with the 2016 elections. The first prong is met—by the admissions of Messrs. Ryan and Trump rather broadly. Even Congress agreed.
The second prong—whether the interference had an effect on the outcomes of elections—is a question I shall address in this blog tomorrow.
The American people need an independent investigation to be conducted. If you agree with what I have written here, let others know about the case. “Share” on Facebook yesterday’s blog about the case with three people. Ask those three people, if they, too, agree with what I have written and agree with at least the first remedy sought—independent investigation by a Special master—or both remedies, to “share” the blogs with three more people.
As Lincoln said: “Let the People know the facts and the country will be safe.”
Disclosure: I am counsel of record in Bailey, et al. v. United States, et al., docket 16-1464.