Trump Still Has Several Constitutional Paths to Victory, Dershowitz Says

November 22, 2020 Updated: November 23, 2020

Alan Dershowitz, a Harvard Law professor emeritus, said he thinks President Donald Trump has several legal paths to a 2020 election victory.

Dershowitz said there are a few “constitutional paths to victory” for the president’s legal team, although he noted that Trump will face legal hurdles in all of them.

“For example, in Pennsylvania, they have two very strong legal arguments. One, that the courts changed what the legislature did about counting ballots after the end of Election Day. That’s a winning issue in the Supreme Court. I don’t necessarily support it, but it’s a winning issue in the Supreme Court,” Dershowitz told Fox Business on Nov. 22.

The team, meanwhile, has “a winning issue in the Supreme Court on equal protection, that some counties allowed flawed ballots to be cured while others didn’t. Bush v. Gore suggests that an Equal Protection argument can prevail.”

Dershowitz, who helped defend Trump during the Senate impeachment trial earlier this year, said that because of Democratic candidate Joe Biden’s lead over the president, Trump’s team may not be able to contest enough ballots in Pennsylvania.

“The other legal theory they have, which is a potentially strong one, is that the computers, either fraudulently or by glitches, changed hundreds of thousands of votes. There, there are enough votes to make a difference, but I haven’t seen the evidence to support that,” he said. “So, in one case, they don’t have the numbers. In another case, they don’t seem yet to have the evidence, maybe they do. I haven’t seen it. But the legal theory is there to support them if they have the numbers and they have the evidence.”

Epoch Times Photo
Attorney Alan Dershowitz, a member of President Donald Trump’s legal team, speaks to the press in the Senate Reception Room during the Senate impeachment trial at the Capitol in Washington on Jan. 29, 2020. (Mario Tama/Getty Images)

However, time is running out for Trump’s legal team, he said.

“You need to have witnesses, experts subject to cross-examination, and findings by a court,” he said, adding that there is no “legal route to undoing that” after the election is certified. “Their strongest case, if they have the evidence, is that computers may have turned hundreds of thousands of votes.”

Last week, Dershowitz noted that if Trump can “keep the Biden [electoral] count below 270, then the matter goes to the House of Representatives, where, of course, there is a Republican majority among the delegations of states, and you vote by state if it goes to the House.”

“You need a perfect storm for it to work,” he said. “You need to get enough states, enough state attorneys general, or state departments, or whoever, secretaries of state or governors that are Republican that legitimately refuse to certify the results because they’re under challenge on the day the Electoral College meets by statute.”

Rep. Mo Brooks (R-Ala.), a former prosecutor, told The Epoch Times last week that Congress has the “ultimate say over whether to accept or reject” Electoral College votes.

“Congress has the absolute right to reject the submitted Electoral College votes of any state, which we believe has such a shoddy election system that you can’t trust the election results that those states are submitting to us, that they’re suspect,” Brooks said. “And I’m not going to put my name in support of any state that employs an election system that I don’t have confidence in.”

Brooks noted that “on January 6th at 1 p.m. Eastern time, the 50 states will report to Congress, the president [of the] Senate will preside over this meeting” and “will report to Congress what they contend are their Electoral College results in their state.” The president of the Senate, under the U.S. Constitution, is Vice President Mike Pence.