Franken Legal Team To Coleman: You Dug Your Own Grave, Buddy
The Franken legal team has been busy this afternoon laying out their argument against Norm Coleman: You don't get to pull a 180.
Franken attorney David Lillehaug has been cross-examining Deputy Secretary of State Jim Gelbmann, who oversaw a great deal of the recount and was originally called by the Coleman side in order to probe into the fallibility that exists within the system. Lillehaug has used the cross-examination as a vehicle to explore a wrinkle in Coleman's new arguments about making sure every absentee vote is properly counted: Coleman originally opposed all similar efforts from the Franken camp during the recount.
Some examples of the Coleman team's arguments, from back when they were ahead in the count:
• Coleman's attorneys previously maintained that ballot rejections carry a presumption of regularity by the local officials. They now argue that every ballot is entitled to a de novo review, independent of what the local official thought.
• They said that the Equal Protection Clause did not mandate a review of absentee ballots. They are now arguing that wrongful rejection, and any administrative variations across the state, violate Equal Protection.
• They previously argued that including previously-rejected absentee ballots would violate Equal Protection, by watering down the votes of people who filled out their documents correctly or voted at the polls. They are now saying that minor errors in ballot forms should be forgiven.
• They argued that absentee-voting is a legal privilege, and not a right, and therefore not entitled to an extra benefit of the doubt for ambiguous envelopes. In Coleman attorney Joe Friedberg's opening arguments this past Monday, he said that the privilege/right question carried no meaningful legal distinction.
The Franken campaign is arguing on the basis of two similar legal doctrines, one known as estoppel and another one called invited error. What it amounts to in this case, lead Franken attorney Marc Elias said at a press briefing early today, is that Coleman is legally barred from making his current arguments about the absentee ballots when he himself spent the recount holding different views, went to court to seek resolution and then endorsed and participated in the process that followed.
During his own press briefing, Coleman lawyer Ben Ginsberg said: "Both campaigns have taken positions in the past that are not entirely consistent with what they are now. That is frankly irrelevant." Instead, he said, the only thing that matters now is the existence of ballots that still have not been counted.














"Coleman lawyer Ben Ginsberg said: 'Both campaigns have taken positions in the past that are not entirely consistent with what they are now.'"
Can he give any examples?
January 28, 2009 4:28 PM | Reply | Permalink
I can't read Coleman's mind, for god's sake who would want to?, but I suspect his "example" would go something like this:
1) Franken, when he was behind in the count, demanded that every eligible vote be counted.
2) Votes were counted.
3) Now that Franken is up, he doesn't want any more votes counted.
Which is completely irrelevant, not to mention disingenuous. That isn't what the Franken camp is saying, and Coleman knows it. Coleman agreed to a set of rules, and now that those rules bit him in the ass, he is reversing course and arguing FOR all the things he once argued AGAINST, while simultaneously accusing Franken of being the back-tracking hypocrite. Pathetic.
I used to think Republican lies were just a cynical tactic they felt would always work out in their favor. Now I am convinced that the vast majority of them are absolutely clueless how stupid they sound. The sad thing is is that so many of them are lawyers; don't law students have to take a mandatory course in logic and reasoning? Have they ever even heard of a "fallacy"?
January 29, 2009 4:18 AM | Reply | Permalink
Is this the Ben Ginsberg who looks like a rat and shows up as a pundit with Joseph diGenova and Victoria Toensing?
January 28, 2009 4:39 PM | Reply | Permalink
One and the same. He was one of the more egregious Republican liars (is "Republican liar" redundant?) on the talkers during the campaign.
January 28, 2009 4:45 PM | Reply | Permalink
The Quimby team seems to have taken complete leave of reality as most of us know it.
January 28, 2009 5:10 PM | Reply | Permalink
Young Eric's headed to law school
Ya heard it here first!
January 28, 2009 5:16 PM | Reply | Permalink
Perhaps, but might be a waste of Young Eric's impressive talents. Eric has performed yeoman work, especially during this MN recount endurance contest, and deserves a helluva lot more recognition than he gets from the TPM brass.
And no, this isn't his mother...
January 28, 2009 6:02 PM | Reply | Permalink
Not for lack of support from this quarter
I blame Sargent
January 28, 2009 7:07 PM | Reply | Permalink
Not a lawyer but...
Isn't estoppel part of contract law? Does contract law apply in this case?
January 29, 2009 1:00 AM | Reply | Permalink
Coleman's campaign could have a point in that Franken's camp probably did argue against Coleman's earlier assertions, which would make them opposite of where they are arguing today. If that's the case though, you'd figure the Coleman lawyer would have quotes and evidence ready to show as much.
January 28, 2009 5:25 PM | Reply | Permalink
Actually, Franken's arguments have been pretty consistent: count all the ballots that the election judges decided were improperly rejected. You'll remember that early on county election judges segregated the rejected absentee ballots into five piles according to why they were rejected with the fifth pile being those that were improperly rejected. These are the ballots that Franken has consistently held should be included.
January 28, 2009 5:28 PM | Reply | Permalink
What the Franken team supported earlier is pretty much moot.
It's Coleman who's got the legal burden.
January 28, 2009 6:38 PM | Reply | Permalink
Also it shouldn't really matter what Franken is arguing, he'll gladly have the case thrown out. It's Coleman who is pushing the the case through, hoping things go his way.
So far he's used doctored evidence, had witnesses basically admit they should have been rejected according to set regulations, and now admits that he's arguing the opposite of what he argued earlier in the process.
January 28, 2009 6:04 PM | Reply | Permalink
I'm thinking that the Franken camp boxed in Team Norm during the recount. We kind of scratched our heads over Al's guys being "too nice" at times rather than playing hardcore like Norm was. I think a feww people pointed out that Al was working the recount in a fashion that both protected some of his potential challenges while cutting off Norm's down the road.
Giving some of the arguments that Team Norm is resorting to, and how shoddy they've been offered up and supported, it looks that line of thinking was correct. Team Norm looks bad because they have very little argument to fall back on other than contradicting their earlier positions.
John
January 28, 2009 6:05 PM | Reply | Permalink
And now the Coleman tech team is faking the crash of their website blaming high interest in how Franken is disenfranchising absentee voters. His legal team calls two witness who mess up his case further. Where does he get these people to work for him?
January 28, 2009 6:59 PM | Reply | Permalink
Ginsberg shows up when there is something nefarious going on with a repug politician. His name was also on court documents in the Feeney case in Florida a few years back after Bush won the first time. The guy represented him.
January 28, 2009 7:15 PM | Reply | Permalink
it was an FCC document found in a search on Fl. R Feeney. Had to do with Clint Curtis and a software program to rig E voting machines.
January 28, 2009 7:22 PM | Reply | Permalink
List of Rejected Ballots for GRANT County
* HARRIETT OLSON
* HARRIETT OLSON
* GREG ROSIN
* GREG ROSIN
I think I know why it got rejected... double counting anyone? :)
January 29, 2009 1:38 AM | Reply | Permalink
My only complaint about Franken is that if he'd run his campaign as well as he's run the recount, there wouldn't have needed to be a recount.
January 29, 2009 2:17 AM | Reply | Permalink
One can see a future Coleman Tactic in the listing of names on rejected ballots on his website. Minnesota Law allows for voters who believe their absentee ballots have been wrongly rejected to appeal to the Supreme Court to have them assessed and potentially counted. Right there in the statute law. And in fact some did so petitioned, and the Supreme Court referred these petitions to this 3 judge special trial court.
Problem is, the deadline for petitions was a week ago Monday.
I suspect the next thing will be advertising with Norm the Crybaby telling us he will not rest until the courts ignore such things as deadlines.
January 29, 2009 10:06 AM | Reply | Permalink