Janine Jackson interviewed the Intercept's Shawn Musgrave about the voter fraud hoax as voter suppression, for the October 25, 2024, episode of CounterSpin. This is a lightly edited transcript.
Janine Jackson: When you hear that Rudy Giuliani has been ordered to turn over valuable possessions, including a Manhattan penthouse, watches and a signed Joe DiMaggio jersey, to the two Georgia election workers he falsely accused of ballot tampering in the 2020 election, you might believe that, though the harm is ongoing, at least the lawyers who propped up Donald Trump's efforts to delegitimize the 2020 vote have paid some kind of price.
And, indeed, catspaws like Sidney Powell, like John Eastman, have faced repercussions. But, our guest explains, not only is the scaffolding of Trump's voter fraud hoax still standing, some key architects are still hard at work on it.
Shawn Musgrave is a media law attorney and reporter who serves as counsel to the Intercept, where you can find his recent piece, “Trump's Big Lie Attorneys Are Back.” He joins us now by phone from here in town. Welcome to CounterSpin, Shawn Musgrave.
Shawn Musgrave: Thanks so much for having me on.
JJ: The key elements of the piece are right there in the lead:
Across battleground states, attorneys who helped former President Donald Trump undermine confidence in the 2020 election results are back at it, filing lawsuits that seed doubt in advance of this year's outcome.
Let's start with the lawsuits themselves, as lawsuits. What are the claims being made, and what can we say about those claims?
SM: So the lawsuits that I looked at fall into a couple of different buckets: one alleging the possibility of voter fraud for overseas ballots, under a federal law that helps US citizens abroad, including members of the military and their families, to vote. And in several states now, Republicans have filed last-minute lawsuits—with voting already going on, including overseas ballots—claiming that there's a possibility of fraud using this mechanism.
And then the second bucket of lawsuits that I look at in this piece is another go-to boogeyman, which is the cybersecurity of voting machines. And the case that I look at is filed in Georgia over Dominion voting machines, which, again, were just one of the centerpieces of the election fights in court in 2020, and it looks like they will be again this year.
JJ: You note that these are last-minute lawsuits being put in there, but still, in terms of evidence, in terms of information, what can we say about, for example, fraud in overseas voting?
SM: So many of these lawsuits have already been rejected. They've been thrown out by courts, including [on] the basis that the people filing them did not show any evidence of actual fraud that had been happening. It's all based on hypotheticals in the lawsuits themselves.
JJ: And the Dominion case, that's not new news for folks. That's also been kind of churned through, hasn't it?
SM: The Dominion claims are very much recycled from 2020, and from other cases that were filed in between the 2020 cycle and now. And it just really underscores the fact that these are also many of the same attorneys who are trying to just recycle the legal playbook.
JJ: The big Big Lie attorney that you're writing about in this piece is Cleta Mitchell. And so what should listeners know about her, and what she's up to?
SM: Cleta Mitchell is very central to the election denial movement. And in 2020, she really came to prominence by being on the infamous call that Trump had with the Georgia secretary of state, Brad Raffensperger, in which Trump asked the Georgia secretary to "find" a few thousand votes. Cleta Mitchell was advising Trump on that call, and she resigned from the law firm that she was at at the time, and then has really since made election integrity, so to speak, her entire brand.
And now, in terms of her involvement this cycle, she has given this pretty frank interview—not to me, but to a conservative radio host—describing her involvement in putting together and helping organize lawsuits over overseas ballots. And she said she struggled to find an attorney who was willing to file one, that was ultimately filed in Pennsylvania.
JJ: I guess there's something heartening about that, actually, about the difficulty of finding attorneys who would line up behind what looks clearly to be a specious set of lawsuits. And, just as a detour, there is something about the abandonment of principle, the politicizing of the professions—doctors who can say, “Well, torture is OK,” and lawyers who can abandon ethical codes. It's somehow different than just being a bad lawyer. It really feels like a giving over of the whole principles of the profession. So I guess I'm happy to hear that it's not so easy to turn up attorneys who will sign on to that.
SM: That was in Pennsylvania, where Cleta Mitchell said she had a hard time finding anyone else to file it. In two other states, where the Republican National Committee were the ones filing, other attorneys were found.
JJ: Right. Well, then, to bring us back, there's no evidence, as you've indicated, for these charges; they haven't been able to put forward any evidence, and they weren't in the previous incarnations of these. So maybe it's time to recognize that evidence, and even winning the lawsuit, is not the point. What is the point, do you think, of these last-minute lawsuits?
SM: When I talk to election law experts, they certainly don't think that the point of most of these suits is to win in court, to convince a judge that they have evidence to support the pretty drastic request that they're asking a judge to give. In the overseas ballots cases, asking for a court order that state election officials set aside ballots that were received from people who went through the registration process as it was when their ballot was sent.
But that doesn't seem to be the point, to convince the judge that they should win on this. It really does seem to be to essentially put out a press release, put together to look like a lawsuit, to sprinkle a little doubt into the public's thinking about the election headed into November.
JJ: And so then maybe, if the Trump team—whatever happens, we don't know—but if the Trump team decides to dispute the election results, well, then, those seeds of doubt have already been laid, and people will say, “Oh, I remember something from even before the election about overseas ballots being perhaps corrupt,” right? So it can be successful in its real goal, even if nothing at all happens in court, or if it gets thrown out.
Fox43 (10/30/24)
SM: And I should mention, in the same radio interview, Cleta Mitchell implied that she already had evidence, but none of it made it into the lawsuit. She told the conservative radio host that Democrats were encouraging people to fraudulently register using these overseas mechanisms. So the striking thing is what is said out of court versus what actually goes into the lawsuit itself. And I think, again, looking at what happened in 2020, same dynamic, is that people will point to the lawsuits, even though the lawsuits don't have any actual proof of fraud, and use the filing of the lawsuit itself as its own form of proof, even though the lawsuit itself doesn't contain proof.
JJ: Well, it’s very Joe McCarthy: “I have a list right here in my hand,” and it turns out to be a blank piece of paper. It doesn't matter. People see him holding what he says is a list, and the impression is made.
Well, I don't want to say that we don't see any reporting that is acknowledging folks like Cleta Mitchell's strategy as a strategy, as an intention of sowing doubt. The New York Times. just on October 22, had a piece on the “election denial network.” But I know that listeners will also have seen coverage that just says, “concerns raised about overseas voting,” and stories that, if you don't read them carefully, or even if you do read them, the very fact that the story got written suggests that there's that there's a there there, that there’s a valid question, even if, “Oh, well, we looked into it, and actually it's not grounded. There's no evidence there.”
And I wonder, what do you, as a reporter as well as an attorney, see as the professional, critical way for journalists to engage this sort of campaign, that uses legal tools and legal language and legal mechanisms, but isn't really about the legality? How do you cover that?
SM: I do think that it's important for reporters to be clear-eyed about what the strategy is, which is to get coverage of the lawsuit just as a lawsuit, and put it into this neutral reportage territory. Like you said, “Concerns raised.” My typical one that drives me nuts is “lawsuit filed,” or something like that, that really just says what the claim was, without looking, as I am currently doing, at—consider the source, consider the lawyer who is willing to sign their name to this, and think about what that means.
The Times today actually had a good story about one of the attorneys that I've also writtenabout, Kurt Olsen, and his background. And he was deeply involved in 2020, in a number of different efforts, including trying to get the election fight straight to the Supreme Court, on a pretty ridiculous theory that was panned by legal experts. But I just remember coverage at the time really focusing just on the stakes, the Supreme Court weighing in, and painting it as if it were similar to what happened in Bush v. Gore, things like that, as opposed to the extraordinary way that the lawsuit arrived at the Supreme Court in 2020.
That's sort of what I'm trying, not to be too grandiose, but to do a little bit of correcting on, just focus on the people that are involved, and the attorneys who are willing to put their law licenses on the line, and sign their name, and attest that everything in the papers is true, even when they have often a checkered track record on that front.
JJ: And not to draw you out on it too much, but it isn't that reporters can't consider the source, because in some other cases they say, “Oh, well, this is the ACLU,” or, “Oh, this is this other organization, so maybe we ought to put an asterisk next to that.” It isn't that they can't do that. It just seems that they don't do that in the way that would always be most balanced, or most useful, when it comes to electoral politics, or something somehow changes when it gets to presidential electoral politics.
But let me just ask you for final thoughts, Shawn Musgrave, about the way—because it's not going to go away—we have indicated that these lawsuits are coming in at the last minute, while folks are already voting, so clearly it's a last-minute press, in many ways, that we might see even more coverage of going forward. What should we be keeping an eye out for? What would you like to see more of, or less of, as reporters cover this going forward?
Shawn Musgrave: ""People will...use the filing of the lawsuit itself as its own form of proof, even though the lawsuit itself doesn't contain proof."
SM: What I aim for, and what I think that other reporters should aim for too, is to take a moment on some of these stories, as so many of these lawsuits are flying, and look at trends. Look at, not just the parties who are named in the lawsuit itself, like the RNC, the DNC, ACLU, different voting rights groups, which are often very generically named, and try to look at the people who are actually working on them. Because I do think, seeing from the postmortem on 2020, the people really mattered, in terms of what strategies were followed, which lawyers Trump was listening to, which he was sidelining and ignoring, or forcing to resign.
We know from 2020 that the people who were working on particular lawsuits matter incredibly. And I think, going into the election and afterward, when there are absolutely going to be lawsuits of one kind or another, it's important that readers understand who the people are, not just faceless attorneys. Because it mattered in 2020, and I assume it'll matter again.
JJ: All right, well, thank you very much for that.
We've been speaking with media law attorney and reporter Shawn Musgrave. You can find the work we're talking about at TheIntercept.com. Thank you so much, Shawn Musgrave, for joining us this week on CounterSpin.
Janine Jackson: When you hear that Rudy Giuliani has been 
