George Washington University Law Professor Jonathan Turley is no stranger to controversial stances and takes, but … votes being switched from Donald Trump to votes for Joe Biden? That sort of unsubstantiated or debunked claim is typically reserved for the president or his closest allies, not a professor of law at a major law school, but Turley alleged just that Friday morning on Fox & Friends, only to be corrected moments later by host Steve Doocy.
“In Michigan, you had thousands of votes that were given to Biden that belonged to Trump,” Turley said, as our sister site Mediaite reported. “Now, that doesn’t mean it was a nefarious purpose. This is a new software that apparently is vulnerable to human error.”
Steve Doocy noted that, actually, only part of what Turley said was true. Reports from the New York Times and the Associated Press uncovered evidence that issues, which were not widespread, were caused by human error in connection with voting software made by a company called Dominion. But more importantly, Doocy noted—and this is not what Turley said—”the software did not affect the vote counts.”
“I looked into it,” Doocy said. “With that Dominion software, five counties in Michigan and Georgia had problems […] And the Dominion software was used in two of the counties and in every instance largely it was human error, a problem, but the software did not affect the vote counts.”
Mediaite noted that Fox News host Sean Hannity discussed Dominion on Thursday night, and that the president promptly tweeted the segment to falsely say that he won the election.
Hannity actually issued a statement to Mediaite after the Friday story on the Fox & Friends Turley-Doocy exchange was published. It’s worth pointing out that Hannity defended his own segment by listing, in bullet point fashion, the claims he himself did not make therein. The most significant of those was this: “I never said votes were changed. As a matter of fact, I went out of my way to say I have no way of knowing if anything nefarious happened.”
Turley also said there may not have been a nefarious purpose, but he did say: “In Michigan, you had thousands of votes that were given Biden that belonged to Trump”—an incendiary claim even Hannity would not defend.
Professor Turley is widely known as the one impeachment expert witness called by Republicans. Turley memorably prefaced his defense of President Trump by claiming he has voted for Bill Clinton and Barack Obama:
First, I am not a supporter of President Trump. I voted against him in 2016 and I have previously voted for Presidents Clinton and Obama. Second, I have been highly critical of President Trump, his policies, and his rhetoric, in dozens of columns. Third, I have repeatedly criticized his raising of the investigation of the Hunter Biden matter with the Ukrainian president. These points are not meant to curry favor or approval. Rather they are meant to drive home a simple point: one can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president. To put it simply, I hold no brief for President Trump. My personal and political views of President Trump, however, are irrelevant to my impeachment testimony, as they should be to your impeachment vote. Today, my only concern is the integrity and coherence of the constitutional standard and process of impeachment. President Trump will not be our last president and what we leave in the wake of this scandal will shape our democracy for generations to come. I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president. That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided.
Whether you agree with this stance or not, making arguments about what is and what isn’t an impeachable offense is what law professors do. But making false claims about switched votes? Since Election Day, Turley has appeared on Fox News numerous times attempting to walk a fine line. On the one hand, he has pointed out that there has not yet been evidence of voter fraud while, on the other hand, as in the Dominion case, Turley has aired bizarre and untethered claims made by the president.
It should be noted that Turley has also been critical of the president’s “stolen” election rhetoric. Even still, Turley’s treatment of specious Trump campaign affidavits that baselessly claim the dead have voted is worth attention.
On Thursday, Turley tweeted a column that is a few days old. Although his tweet said the “burden of proof” was on the Trump campaign, and although he didn’t state as fact anywhere in his column that the dead have voted, the column makes no mention of some important updates.
We have also seen new affidavit detailing deceased voters and other problems, including alleged fraud and computer system problems. There are more filings being referenced for next week. The burden remains on the Trump camp obviously. https://t.co/YhsRHpXvW0
— Jonathan Turley (@JonathanTurley) November 13, 2020
Democratic Michigan election officials, a Republican election official in Philadelphia, and various fact checkers have already provided clear explanations about why it is not true that dead people have voted. Turley’s column (which he recirculated yesterday) does not address this, but it does say this: “If the Trump campaign is premature in claiming a deceased electorate, the Biden campaign is premature in claiming Donald Trump is deceased in the race.” Huh?
Then there was Turley’s amplification and exaggeration of a minor win for the Trump campaign in Pennsylvania.
“I previously noted that legal analysts should be looking for categorical violations affecting larger numbers of ballots. A Pennsylvania judge just issued such a ruling in finding that the Secretary of State violated state law in extending a key deadline,” he said.
But the Pennsylvania ruling, while a loss for Secretary Kathy Boockvar (D), actually wasn’t a ruling that will significantly impact or change the election outcome.
“[T]he Court concludes that Respondent Kathy Boockvar, in her official capacity as Secretary of the Commonwealth, lacked statutory authority to issue the November 1, 2020, guidance to Respondents County Boards of Elections insofar as that guidance purported to change the deadline […] for certain electors to verify proof of identification,” Commonwealth Court President Judge Mary Hannah Leavitt wrote. “Accordingly, the Court hereby ORDERS that Respondents County Boards of Elections are enjoined from counting any ballots that have been segregated pursuant to paragraph 1 of this Court’s order.”
The substance of the story is that a judge ordered that a very limited number of already segregated ballots should not be counted. What are those ballots? Mail-in ballots that did not get identification verification by Nov. 9. Judge Leavitt blocked Boockvar’s guidance that had extended the verification deadline to Nov. 12. The Associated Press previously reported that up to 10,000 ballots might be affected, but it’s unclear how many of those failed to be verified for identification by Nov. 9.
We’re talking about a subset within a subset of votes that have not been included in the current count that has Biden ahead by several tens of thousands of votes in Pennsylvania. As of this moment, Biden is ahead by around 60,000 votes in Pennsylvania. It’s also worth keeping in mind: Yes, the mail-in vote in Pennsylvania has been heavily in favor of Biden, but not all of it. Some of the ballots that may not be counted might also be votes for Trump.
So when Turley advised that legal analysts look for “categorical violations affecting large numbers of ballots,” that is true. But it’s not true that the judge in Pennsylvania “just issued such a ruling.” His second tweet in the Boockvar thread noted that “There is still the question of whether any challenges could impact enough ballots to overcome the current margins.” But, at this point, no one else is seriously asking this question and answering it with a “yes.”
And at the time of this writing, Pennsylvania’s Department of State released a statement saying that “Based on the unofficial returns submitted by all the counties […] Secretary Boockvar has determined that she will not be ordering a recount and recanvass of the election returns in the counties, as no statewide candidate was defeated by one-half of one percent or less of the votes cast.”
“This includes the following races: President of the United States, Attorney General, Auditor General, and State Treasurer,” the statement said.
This discussion follows the news that two major law firms have withdrawn from representing President Trump’s legal challenges, after judges asked some very pointed and skeptical questions about the factual allegations the Trump campaign was making. This stands in stark contrast to Prof. Turley’s seeming advocacy for the president’s often factless claims—which is particularly notable when one considers that Turley is an oft-cited, widely published, and widely read constitutional law expert.
Law&Crime reached out to Professor Turley for comment about the remarks he made during the Fox & Friends segment and the other issues this article addressed. We asked him to respond to the observation that, whether intentionally or not, he has provided legal analysis which would seem to offer the president’s supporters false hope.
Professor Turley responded to this story by taking issue with with the suggestion that Doocy had to correct him.
“Your story suggests that a host had to correct me that the Dominion allegation involved just one district and that it was human error. The story does not mention that I made clear in my remarks that this was one district with the problem and that it was likely human error,” Turley said. “I have repeatedly discussed the Dominion controversy in various interviews as an initial tally error (as reported by the Secretary of State) and that was corrected quickly.”
“The issue being raised [was] whether the software or system was vulnerable to such human error. That is why I mentioned that this system was used in a large number of districts and states. I have never suggested that those claims have been supported and I have never said that I thought this election was stolen,” Turley continued.
This op-ed originally noted that Turley has criticized the president’s “stolen” election rhetoric. This piece also said in couple of places that Turley has, indeed, stressed the need for evidence of fraud and has placed the “burden of proof” on the Trump campaign’s lawyers. The story initially included Turley’s quote saying “This is a new software that apparently is vulnerable to human error,” as well as his comment saying that something “nefarious” did not necessarily occur in Michigan.
Here is what the New York Times found on Dominion:
The Dominion software was used in only two of the five counties that had problems in Michigan and Georgia, and in every instance there was a detailed explanation for what had happened. In all of the cases, software did not affect the vote counts.
In the two Michigan counties that had mistakes, the inaccuracies were because of human errors, not software problems, according to the Michigan Department of State, county officials and election-security experts. Only one of the two Michigan counties used Dominion software.
Issues in three Georgia counties had other explanations. In one county, an apparent problem with Dominion software delayed officials’ reporting of the vote tallies, but did not affect the actual vote count. In two other counties, a separate company’s software slowed poll workers’ ability to check-in voters.
“I also have never said that there was evidence of massive vote errors. I have repeatedly stated the very opposite,” Turley said, pointing us to a blog post in support of that.
In that post, he writes, in part:
Every interview that I have given has included a statement that there is no such evidence and that it is unlikely that such evidence will emerge. However, while some were claiming the absence of serious irregularities within 24 hours of the race being called for Biden, I have noted that we are still waiting to see any underlying evidence in these cases. At the same time, I have criticized the Trump legal team (in the very interview Campos references) and previously said that it was time for the team to produce claimed evidence.
Editor’s note: this post was updated post-publication with a response from Prof. Turley.
[Image via Fox News screengrab]
This is an opinion piece. The views expressed in this article are those of just the author.