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This is an overview of adverse inferences in labor arbitration. This includes reviewing provider organization rules, labor arbitration awards, case law, and treatises on labor arbitration.

Introduction

This is an overview of adverse inferences in labor arbitration. This includes reviewing provider organization rules, labor arbitration awards, case law, and treatises on labor arbitration.

American Arbitration Association (AAA) Rules

The AAA Labor Arbitration Rules and the AAA Employment Arbitration Rules do not explicitly mention adverse inferences.

AAA Consumer Arbitration Rule 23 “Enforcement Powers of the Arbitrator” indicates:       

The arbitrator may issue any orders necessary to enforce the provisions of rules R-21 and R-22 and to otherwise achieve a fair, efficient, and economical resolution of the case, including, but not limited to: ...

(d) in the case of willful non-compliance with any order issued by the arbitrator, drawing adverse inferences, excluding evidence and other submissions, and/or making special allocations of costs or an interim award of costs arising from such non-compliance; … . Emphasis added.

AAA Commercial Arbitration Rule 24 says:

The arbitrator shall have the authority to issue any orders necessary to enforce the provisions of Rules R-22 and R-23 and any other rule or procedure and to otherwise achieve a fair, efficient and economical resolution of the case, including, without limitation: ...

(d) in the case of willful non-compliance with any order issued by the arbitrator, drawing adverse inferences, excluding evidence and other submissions, and/or making special allocations of costs or an interim award of costs arising from such non-compliance; ... . Emphasis added.

National Arbitration and Mediation

National Arbitration and Mediation Employment Rules and Procedures, Rule 14(D), says:

The Arbitrator shall have the power to award sanctions against a Party for the Party’s failure to comply with these Rules or with an order of the Arbitrator. These sanctions may include an assessment of costs, prohibitions of evidence or, if justified by a Party’s wanton or willful disregard of these Rules, an adverse ruling in the Arbitration against the Party who has failed to comply. Emphasis added.

Financial Industry Regulatory Authority (FINRA)

Financial Industry Regulatory Authority (FINRA) Code of Arbitrators for Industry Disputes Rule 13212 says:

(a) The panel may sanction a party for failure to comply with any provision in the Code, or any order of the panel or single arbitrator authorized to act on behalf of the panel. Unless prohibited by applicable law, sanctions may include, but are not limited to: ...

•  Making an adverse inference against a party;

•  Assessing postponement and/or forum fees; and ...

(b) ...

(c) The panel may dismiss a claim, defense or arbitration with prejudice as a sanction for material and intentional failure to comply with an order of the panel if prior warnings or sanctions have proven ineffective. Emphasis added.

Adverse inferences in labor arbitration awards

Heinz, NA, 132 LA 1089 (Hornberger, 2013) [cited at Elkouri & Elkouri, How Arbitration Works (8th ed. 2016), p. 8-51], stated:

The Union argues that the fact that the Company failed to produce ___ and ___ to testify supports the Union’s position concerning the creditability of witnesses. This argument does not control for a number of reasons. First, ___ and ___ are bargaining unit employees who may or may not have witnessed the activity in the vicinity of the ___ Room. The record is silent as to whether they are Union officials. Second, they were equally available to both sides as witnesses. They were not peculiarly within the Company’s control. Third, given the fact that these bargaining unit employees were equally assessable to the Union, I do not make an adverse inference against the Company for not calling them.

The failure of a party to call as a witness a person who is available and should be able to provide important testimony may permit an arbitrator to form an inference that the testimony would have been adverse to the party that did not call such person as a witness. Elkouri & Elkouri, pp. 8-51 to 8-52.

Sometimes party A argues that the fact party B failed to call certain employees to testify supports party A’s position concerning the credibility of witnesses. Arbitrators look at whether these employees were equally available to both sides as witnesses. Were the witnesses peculiarly within the other party’s control? Were these bargaining unit employees who were equally assessable to the party?

Michigan case law concerning adverse inferences in arbitration

In UHG Boca, LLC v Medical Mgt Partners, Inc, unpublished per curiam opinion of the Michigan Court of Appeals, issued January 18, 2024, Docket No. 361539, lv den ___ Mich ___ (2024), after the arbitrator issued the final award, the plaintiff moved to vacate in part the award, asserting the arbitrator improperly applied the wrongful conduct rule. The arbitrator had concluded the revenue plaintiff was seeking from defendants was the result of illegal patient billing or other illegal business practices, and, in the arbitrator’s viewpoint, it would be contrary to public policy to enforce the agreements. The plaintiff also argued the arbitrator improperly applied the adverse inference rule when the arbitrator concluded, on the basis of adverse inference, that the parties were conducting an illegal enterprise. The Circuit Court disagreed with the plaintiff and confirmed the award. The Court of Appeals affirmed the Circuit Court.

The arbitrator assigned an adverse inference to the decision of certain witnesses not to testify regarding illegally obtained police reports. The Court of Appeals indicated:

The privilege against self-incrimination permits a defendant to refuse to answer official questions in any other proceeding, no matter how formal or informal, if the answer may incriminate him or her in future criminal proceedings.” In re Blakeman, 326 Mich App 318, 333; 926 NW2d 326 (2018). However, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the amendment does not preclude the inference where the privilege is claimed by a party to a civil cause.” Id. at 334 n 4 (quotation marks and citation omitted). While plaintiff is correct that certain witnesses that did not testify were defendants, individuals associated with plaintiff also refused to testify at the hearing. Moreover, contrary to plaintiff’s assertion, the arbitrator did not rely solely on the adverse inferences when he made his determination that the businesses were operating in an illegal fashion. Accordingly, the arbitrator did not err when it applied the adverse interest rule. Emphasis added.

Lustig v Dep’t of Health and Human Services, unpublished per curiam opinion of the Michigan Court of Appeals, issued March 12, 2020, Docket No. 346447, lv den ___ Mich App ___ (2020). Defendant employer argued plaintiff employee’s due process rights were not violated by the employer’s failure to produce all of the requested documentation because he had the opportunity to be heard and to defend himself by subpoenaing the testimony of other employees to provide the information he sought. Plaintiff employee argued he was unable to present an adequate defense because he lacked requested documentation regarding his work requirements and objectives in comparison to other similarly situated employees and thus he was denied procedural due process. The Court of Appeals agreed with defendant, reversed the Circuit Court’s order, and reinstated the Michigan Civil Service Commission’s decision upholding the Hearing Officer’s determination that defendant had just cause to terminate plaintiff’s employment. The Court of Appeals indicated: “[T]he record belie[d] plaintiff’s contention that he was not afforded a fair opportunity to present an adequate defense without receiving all of the documentation that he had requested.”

In Santamauro v Pultegroup, Inc, unpublished per curiam opinion of the Michigan Court of Appeals, issued December 20, 2016, Docket No. 328404, the plaintiff employee agreed to arbitrate claims arising from his employment. He was discharged. He initiated an employment arbitration alleging wrongful discharge. The arbitrator found the plaintiff employee had deliberately spoiled evidence by removing the hard drive of his employer-owned laptop computer before returning it to the employer and dismissed the action. The Circuit Court ruled the parties’ arbitration agreement intended the arbitrator could exercise the same powers as a judge and found no basis for disturbing the arbitrator’s award. The Court of Appeals affirmed the Circuit Court’s confirmation of the award. The Court of Appeals indicated plaintiff was placed on notice that a discovery sanction was sought, was afforded ample opportunity to submit evidence on his own behalf, and no due process violation occurred.

The Common Law of the Workplace (2d ed., St. Antoine)

The Common Law of the Workplace has helpful discussions concerning adverse inferences. The Common Law of the Workplace indicates the following concerning adverse inferences.

§ 1.14. Subpoenas

Arbitrators, the AAA under its rules, and, in some jurisdictions, attorneys can sign subpoenas for persons and things to demand their presence at the arbitration hearing.

Comment:

... If subpoenaed material is not turned over by a party, or if a subpoenaed witness controlled by a party-such as a supervisor or management official-does not appear, the other party can either enforce the subpoena in court or ask the arbitrator to draw adverse inferences against the offending party. … Id. at pp. 12-13. Emphasis in original.

§ 1.45. Nonappearance of Subpoenaed Witnesses

Comment:

... [I]f the witness is within the control of a party, an alternative method of “enforcing” a subpoena is to ask the arbitrator to draw adverse inferences against the party that did not bring the witness after it is proven a subpoena was properly served. Id. at p. 30. Emphasis in original.

Abrams, Inside Arbitration (2013)

Inside Arbitration reviews adverse inference issues in labor arbitration and states:

If a witness refuses to answer a proper question, a party can ask the arbitrator to direct the witness to answer. The arbitrator cannot order the witness to answer and hold him or her in contempt for not answering, as would a trial judge. If the witness still refuses to answer, the arbitrator properly presumes that the testimony would not have been favorable to the party who called the person as a witness. Id., p. 139. ...

... If the missing witness appears to the arbitrator to have played a critical role in the events raised in the grievance, the neutral will draw a negative inference that the missing witness would not have testified in support of the claim. Id., p. 147. ...

... [A]rbitrators will generally draw an adverse inference from the fact that the grievant does not offer his or her side of the story directly to the arbitrator. That does not mean that management must prevail if the grievant does not testify. It means, rather, that an arbitrator expects to hear from the accused party. … Id., p. 215. Emphasis added.

Nolan, Labor and Employment Arbitration (1998)

Labor and Employment Arbitration contains a helpful discussion concerning adverse inferences. Id., p. 225-226. Nolan indicates, in part:

As a practical matter, arbitrators cannot force a reluctant employee to testify. They may issue a subpoena but enforcing a subpoena requires court action. Arbitrators can and frequently do draw adverse conclusions from a failure to testify  … . Id., p. 225.

... Most arbitrators do draw negative inferences... . They are particularly likely to do so when the reluctant employee faces no risk of a subsequent criminal proceeding.  … Id.

Conclusion

The use of adverse inferences is alive and well in labor arbitration. Adverse inference issues can arise from failure to call a relevant witness, produce relevant documentation, silence, or the destruction of evidence.

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Lee Hornberger is a member of the National Academy of Arbitrators. He is a former chair of the State Bar’s ADR Section, Editor Emeritus of The Michigan Dispute Resolution Journal, a former member of the SBM’s Representative Assembly, a former president of the Grand Traverse-Leelanau-Antrim Bar Association, and a former chair of the Traverse City Human Rights Commission.
He is a member of the Professional Resolution Experts of Michigan, and a Diplomate Member of The National Academy of Distinguished Neutrals. He has received the Distinguished Service Award, the George Bashara Award, and Hero of ADR Awards from the SBM ADR Section.

Bob Woodward, Washington Post associate editor, journalistic hustler, and huckster is back.

Bob Woodward, Washington Post associate editor, journalistic hustler, and huckster is back.

This time with a book titled “War,” in which he claims Donald Trump, after leaving the White House, called Vladimir Putin seven times and sent him COVID kits which would protect the Russian leader.

As usual, Woodward uses anonymous sources, except this time he mentions only one source and admits, according to The New York Times, he could not confirm the information with anyone else.

The Times stated 20 members of the career intelligence community as well as President Biden and former Trump administration officials had no knowledge of any contacts between Trump and Putin.

In the book, as he always does, Woodward uses direct quotes to report on controversial issues when no official transcripts are available. He has never explained this violation of journalistic ethics.

At one point, when President Biden’s son, Hunter, came into the room and chatted with his father, the President just “leaned back in his chair, closed his eyes and sighed.”  We can assume Woodward uncovered this information for a secret vault in the White House.

The book also “reveals” profane-laced statements made by Biden when discussing Israel’s Prime Minister Benjamin Netanyahu. At one point, we are told, he called Netanyahu a “f---- liar.”

We will have to take Woodward at his word.

This book follows one called “Peril” (co-authored with Robert Costa) in which Woodward states Army General Mark Milley, the chairman of the Joint Chiefs of Staff, called his counterpart in China, General Le Zuocheng, to assure him that he (Milley) would alert him if the U.S. planned to attack China.

Before I go on, is there anyone reading this who believes that the highest-ranking U.S. military official who spent 40 years in the military, would undermine the president and the country by providing such a warning and vital secret information of a surprise attack to an arch-enemy?

I did not think so. Indeed, when asked during a congressional hearing if he would do that, Milley responded under oath, “Of course, I wouldn’t,” adding, “My oath is to support the Constitution of the United States of America against all enemies foreign and domestic.”

Woodward also tell us that despite Milley’s assurances, General Li “remained unusually rattled.” Since no source is cited, we must assume that Woodward was sitting in Li’s office in China when Milley made the call.

Throughout the years, Woodward has violated journalistic ethics, not only with his use of anonymous sources or direct quotes that cannot be proven, but also he frequently reported on what officials were “thinking” in meetings they attended decades earlier. At night, I cannot even remember what I “thought” at breakfast.

But I must give Woodward credit for being shrewd in convincing officials to talk to him off-the-record. His sources understand if they answer his questions, they will not have to worry about being implicated in the subjects Woodward explores because he cannot divulge their identities. Woodward cannot criticize his sources even if they are responsible for the very crises Woodward investigates. They have protection.

Woodward knows all that and he exploits this relationship expertly.

In one case, Woodward did reveal a source. In 1985, he said that the late Supreme Court Associate Justice Potter Stewart was his primary source for his book, “The Brethren,” which dealt with the court.

Woodward did so after Stewart died, when the man could not defend himself.  Not only did Woodward violate the ethic of keeping sources secret -- you never reveal sources -- but his revelation can only be described as ugly, mean-spirited and self-serving. How does one point a finger at a man after his death?  What does that say about character?

Woodward’s career has been rampant with his questionable reporting.

Let’s review another major case involving Woodward’s book, “Veil: The Secret Wars of the CIA, 1981-1987.”

In the book, published in 1987, Woodward claimed that the late CIA Director William Casey confessed to him about illegal arms sales to Iran in what was called the Iran-Contra scandal.

Casey, at the time, was in the hospital, paralyzed and gravely ill following brain surgery, but Woodward claimed he managed to visit Casey in his hospital room despite strict security.

“You knew, didn’t you?” Woodward wrote, inquiring whether Casey was aware that funds from the sale of arms to Iran were being diverted to the Nicaraguan contras. “His head jerked up hard,” Woodward wrote. “He stared, and finally nodded yes.”

“Why?” Woodward said he asked.  Casey replied faintly, “I believed.”

Casey’s family and intelligence officials all said it was impossible for Woodward to have avoided security to gain access into Casey’s hospital room.

At the time, Time Magazine observed: “It was a perfect ending for Woodward’s dramatic spy saga. Too perfect in the view of some…In familiar Woodward style, ‘Veil’ reads as much like a novel as a work of journalism, with scenes, dialogue and characters’ thoughts re-created. Woodward says he talked to more than 250 people, but his revelations are not directly attributed to specific sources.”

When Woodward’s boss, the late Washington Post Executive Editor Ben Bradlee, spoke at the Detroit Press Club years ago, I asked him how Woodward gets away with his “journalistic compromises.” Bradlee admitted, “He [Woodward} takes some liberties.”

The major question is: How did Woodward become such a hero in journalism? Newsweek Magazine, in examining Woodward’s work, asked that question in a 2013 article headlined: “The Myth of Bob Woodward: Why Is this Man an American Icon?”

No one in the business has ever answered that.

(Full disclosure: I have not read “War.” I don’t read much fiction. This column is based on news stories discussing the book’s release due this week).

But I must confess that I am indebted to Woodward. When I was still teaching at Wayne State University, he provided me with lots of material for my classes on ethics in journalism.


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Berl Falbaum is a long-time political journalist and author of several books.

This column will be described as un-American.  I expect accusations of being a communist, and anticipate other unprintable attacks.
So be it…

This column will be described as un-American.  I expect accusations of being a communist, and anticipate other unprintable attacks.

So be it…

Now that the football season is well underway, did you know:

Seven football players in their teens died just in August directly or indirectly from football injuries.

The National Center for Catastrophic Sport Injury Research has reported that there were 16 deaths of young football players in 2023.

The reaction in the country?  None.  Where are the headlines? Where is the outrage?  How can we accept such a death toll in favor of Friday Night Lights and Saturday and Sunday games?

It is inexplicably and condemnable that we continue to cheer enthusiastically what can only be described as “organized mayhem” on a field.

Don’t take my word for it.  The legendary Green Bay Packers coach, Vince Lombardi, observed when someone described football as a contact sport: “Football isn’t a contact sport.  It is a hitting sport.  Dancing is a contact sport.”  Then he added: “Football is a sport for madmen.”

At least Lombardi was candid about the sport.  No, “All sports have risks.  Players learn sportsmanship.  Learn to be a team player.”  I am sure you have heard it all.

Or consider the following from Bob Costas, the former NBC sports announcer now working for Turner Sports. Costas, who I consider the most intellectual and articulate of sports analysts, has characterized football as “inherently violent and unsafe” and “unacceptably brutal.”   

Notice the adjective “unacceptably.” We have not only accepted the unacceptable but we have embraced it enthusiastically.

When, on occasion, I watch a game with my grandchildren, I continually wonder how players get up from the turf following each play after receiving bone-crushing tackles from 300-plus-pound behemoths who bench press 400-500 pounds without breathing hard.

Much is written about making the sport safer by reducing injuries with improved helmets and other equipment, and better training.

But you can’t make the game safe when 22 men -- 11 on a side -- hurl and smash their bodies at each other, sometimes at full speed.  You cannot expect a player, running through the line made up of a ton of muscle, to escape serious consequences, if not immediately, then later in life.

It can never be “safe” when these muscle men are trained to hit opponents as hard as possible to stop a runner or clear a path for their own offensive backfield.

It can’t be made safer, not when one of the major objectives of the game is to cause players to fumble by hammering them as hard as possible, and make him think twice about the next time he has the ball.  From little league to the majors, players are taught to hit and hit harder.

There are special drills that teach players how to inflict “punishment”, and the Internet posts, with admiration, the hardest hits in football history.  They are listed as “must see.”

When a player delivers an especially pulverizing tackle, he often stands above his “victim,” pounding his chest while he receives high-fives from teammates, congratulations from coaches and fans go wild.

Violence is an integral part -- I am tempted to say the primary component -- of the game.  It is the major attraction.  

In January 2023, the country briefly reflected on the dangers of the game when Damar Hamlin, a safety for the Buffalo Bills, suffered cardiac arrest and collapsed during a game. Fortunately, he recovered.

But public concern quickly abated with a quick, uninterrupted return to business-as-usual.

Ultimately, of course, it is a matter of money.  Football is a multi-billion-dollar businesses.

The University of Michigan, for example, earns $75 million from its football program.  It is the third most profitable program in college football.

Jim Harbaugh, U-M’s former football coach, earned a whopping $7.5 million annually while his boss, the U-M president, received an annual salary of just under $1 million.  That tells us whom the university values more.

They exploit the bodies of talented athletes to fill their coffers and increase salaries.  And winning football games does that.

The pros are rewarded with million-dollar contracts and high school players are wooed with generous scholarships.  Of course, the adoration of fans is also an aphrodisiac for the ego.

In many cases, university coaches “bend,” if not break, recruiting rules to attract the best football talent that will assure a winning season -- and greater profits. That’s like getting approval for a patent in industry.

As I wrote in a previous column on this subject, for those who deny that violence is the attraction, I have a recommendation for making the game safe.  

Under my plan you can still enjoy all of football’s athleticism -- the passing, running, catching, kicking, etc. -- but the serious injuries now suffered by players would be dramatically reduced, if not eliminated.

Make it touch football.  When my wife read this column in draft form, she asked: “Are you really going to go public with this?  Think of the family.”  Then I saw her make sure the front door was locked.

In recent years, five states have introduced legislation to ban youth tackle football.  None is expected to pass given intense political pressure from special interest groups.

OK, I am a sour-puss, a kill-joy, a Neanderthal, if not a communist.  

So, let’s talk to the parents of those who died playing football and/or to players, active or retired, who are suffering from dementia, chronic traumatic encephalopathy (CTE, a neurodegenerative brain disease), or are dealing with a variety of serious spinal injuries, mangled knees or are drug addicts given constant use of pain killers.

A friend who knew a very famous retired professional quarterback told me the former player slept strapped on a board at a 45-degree angle, to deal with the unrelenting pain.

I met a man while undergoing rehabilitation myself for some back problems, who could barely walk. Why? He told me he was a retired linebacker for the Green Bay Packers.

Given the reaction I expect, I am wearing sunglasses, a wig, and a fake nose and mustache.


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Berl Falbaum is a long-time political journalist and author of several books.

Election season is upon us. Political signs are on the lawns. Billboards and media ads are everywhere. Candidates crisscross the country making their appeals and attacking each other.

JJ Conway
J.J. Conway Law

Election season is upon us. Political signs are on the lawns. Billboards and media ads are everywhere. Candidates crisscross the country making their appeals and attacking each other. This year, like all election years, has seen ideas tossed out to the public for consideration. Paid medical leave. Paid childcare benefits. IVF treatments at no cost.

If any of these campaign ideas were to come into legal existence, how will it happen? Well, a good place to look is the Employee Retirement Income Security Act of 1974, or ERISA.

When ERISA is cited in legal briefs and opinions, it is often followed by the words “as amended.” This is a kind of unique wording among benefits practitioners since other cited statutes often don’t reference their amendments. Those two words – as amended – cover a lot of ground. In fact, the amendments to the ERISA statute are seemingly outpacing its original provisions.

ERISA was enacted to protect pensions. As a statute that federalized the law of benefits for the private sector, it followed that ERISA’s regulatory reach would eventually cover all benefit plan offerings, healthcare, disability, life insurance, and the like. With that framework in place, amendments to the act could follow and the law’s reach could be expanded.

As an example of this, ERISA served as the foundational statute allowing for the implementation of COBRA benefits to be provided. The word “COBRA” has nothing to do with healthcare coverage. The law, itself, was a budget act, i.e., the Consolidated Omnibus Budget and Reconciliation Act of 1986. But the continuation of health coverage and the penalties that were used to enforce that right appeared as an amendment to the ERISA statute. The national reach of the law was such that during

the Reagan Administration, COBRA could be enacted to cover group health plans and prevent the loss of health insurance following a job loss. Failing to follow COBRA subjected employers to penalties that were enforced under ERISA’s Section 502(c), 29 U.S.C. 1132(c).  Such COBRA penalties were to be established by the U.S. Department of Labor and would rise over time consistent with the Consumer Price Index.

Similarly, the Mental Health Parity Act of 1996 - which itself did not create a private right of action for those it was meant to help - was made enforceable through another amendment to ERISA. When the law was updated and revised in 2008 to set forth greater protections for substance abuse treatment, among other things, ERISA was amended, again, through the Mental Health Parity and Addiction Equity Act of 2008.

The Patient Protection and Affordable Healthcare Act – which is perhaps the most dramatic amendment to ERISA’s statutory provisions since the passage of the law itself– again omitted a private right of action but allowed for its enforcement through ERISA’s statutory provisions. The ACA also transformed the offering of healthcare benefits to employees from being a discretionary act by an employer to one that was mandatory for employers of a certain size.

These changes to the law began as campaign promises. Often, they were promises made over several campaigns (think President Bill Clinton and healthcare reform in 1992 to its passage in 2010 under President Barak Obama). In 1986, President Reagan signed one of the largest compromise budgets of all time. It established COBRA protections, but it continued a number of tax policy changes that his administration had campaigned on in 1984.

What lies ahead? It is anyone’s guess. ERISA provides a ready-made federal platform for all sorts of changes like paid child leave, paid daycare benefits, educational reimbursements, and sabbatical income benefits. The voting public seems comfortable with certain of these ideas being made a part of their federal rights, and, as such, they are comfortable with more amendments yet to come.

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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

As we approach the November 5 election, I thought it would be useful to provide a summary of what leading politicians think of Donald Trump.

As we approach the November 5 election, I thought it would be useful to provide a summary of what leading politicians think of Donald Trump.

Oh, I mean Republican officials; there is not a Democrat in sight in the list below. Call it a public service.

These are characterizations from people who worked for him and knew him best.

Reader discretion advised for Trumpites. To use the language of warnings on TV, you may find the comments disturbing.

Here goes.

--J.D. Vance, Trump’s running mate: He was a “never-Trump guy,” “I never liked him,” and exclaimed, “My God, what an idiot.”  He called Trump “America’s Hitler” and in 2016, Vance described Trump as “a terrible candidate,” “a cynical a_____ like Nixon” and “cultural heroin.”

--Trump’s Former Vice President Mike Pence: He cannot in “good conscience” endorse Trump.

--Former South Carolina Governor Nikki Haley, who challenged Trump for the 2024 presidential nomination: Nominating Trump for president would be like committing suicide for the country.
Trump is “unhinged,” “unsafe to be president,” and “unqualified to be president of the United States.”  

--House Speaker Mike Johnson in 2015: “The thing about Donald Trump is that he lacks the character and the moral center we desperately need again in the White House.”

--In 2017, Trump’s then Secretary of State, Rex Tillerson: He called his boss a “f_____ moron” in a Pentagon meeting.

--Former Secretary of Defense James Mattis: Trump was “the first president in my lifetime who does not try to unite the American people. We must reject and hold accountable those in office who
would make a mockery of our Constitution.”

--Trump’s former chief of staff, Marine General John Kelly: Trump was the “most flawed person I ever met in my life. The dishonesty, the transactional nature of every relationship, though it’s more pathetic than anything else.”

--Florida Senator Marco Rubio in 2016: “You all have friends who are thinking about voting for Donald Trump [but] friends do not let friends vote for a con artist.”

--Texas Senator Ted Cruz: Trump is a “sniveling coward,” “utterly immoral,” a “serial philanderer” and “pathological liar. He doesn’t know the difference between truth and lies.”

--South Carolina Senator Lindsey O. Graham: Trump is a “race-baiting, xenophobic, religious bigot” and he told Trump to “go to Hell.”

--Former Texas Governor Rick Perry in 2016: “...Donald Trump’s candidacy is a cancer on conservatism and it must be clearly diagnosed, excised, and discarded.”

--GOP Presidents George H.W. Bush and his son, George W. Bush, did not endorse Trump in 2016, nor did Utah Senator Mitt Romney, the GOP nominee for president in 2012.

--Utah’s Senior Senator Mike Lee, after the Access Hollywood tape became public: “I wouldn’t hire that person, wouldn’t want to be associated with that person. And, I certainly don’t think I’d be comfortable hiring that person to be the leader of the free world.” Then, in another statement, he admitted, Trump “scares me to death.”

--North Dakota Gov. Doug Burgum, who was a presidential candidate briefly this year: He wouldn’t even do business with Trump.

--Kristi Noem, South Dakota governor, who was considered a possible Trump running mate: She said in 2016, “[Trump is] not my candidate.”

--New York Representative Elise Stefanik, also mentioned as a possible Trump running mate: Trump was a “whack job.”

--Kari Lake, unsuccessful gubernatorial candidate in Arizona and current senatorial candidate:  She depicted Trump, “as not my president.”

--South Carolina Representative Nancy Mace after the January 6 insurrection: “I hold him accountable for the events that transpired in the attack on our Capitol....”

--New Hampshire Governor Chris Sununu: He repeatedly criticized Trump, stating Trump brought doom to the GOP and faced “numerous investigations and continues to peddle the conspiracy theory that he won the 2020 election.”

--Former White House Counsel Ty Cobb: “Trump is an empty soul. He doesn’t stand for anything but pure ambition. There is no principle at all.”

--Former House Speaker Kevin McCarthy regarding Trump’s responsibility for the January 6 insurrection: “I’ve been very clear to the president --- he bears responsibilities for his words and actions. No ifs, ands or buts.”

--Senate Minority Leader Mitch McConnell, discussing the January 6 insurrection with associates: “The Democrats are going to take care of the son of ____ for us,” according to a book, ‘This Will Not Pass.’ As to Trump’s guilt, McConnell has said, “If this isn’t impeachable, I don’t know what is.”

In addition, all of Trump’s highest-ranking officials in the White House told him he lost the 2020 election, and they testified to that fact at the January 6 Select Committee’s hearings.  His attorney general, Bill Barr, called Trump’s claims of winning “bu______.”

In apparent agreement with Barr’s conclusion, Trump’s daughter, Ivanka, “accepted” Barr’s assessment that there was no evidence of sufficient fraud in the 2020 election that could have overturned the results.

Of course, that’s just a summary. There is more, much more.

Okay, to be fair and address the other side:  At the GOP convention numerous speakers, including some of the above, hailed the former president, but the one that electrified the audience came from Hulk Hogan.

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Berl Falbaum is a long-time political journalist and author of several books.

There is much concern over whether the upcoming presidential election will be “rigged” against one candidate, or another.

There is much concern over whether the upcoming presidential election will be “rigged” against one candidate, or another.  Based on Michigan election law, MCL 168.1-168.992 and my 16 years working as an election inspector, here is how you can have a meaningful sense of whether or not the election was, or could have been, “rigged,” such that your candidate might have been wrongly deprived of victory.

Elections are run by the clerks of cities and townships across Michigan. As such, the results for statewide elections, such as the presidential election, are the sum of the results from the 1,521 jurisdictions that run the elections. This diffused management makes it extremely difficult to engage in any large-scale “rigging.”

Crucially, the clerks who run the elections hire “election inspectors” to do the actual work of putting on the elections. Most of these election inspectors live in the city or township where the election is occurring. That is, the folks you see working the polls and who help you vote are your neighbors, typically civic-minded residents who simply want to help self-government function. 
Each election inspector takes an oath to uphold the U.S. and Michigan Constitutions and perform their duties according to the Michigan election law. MCL 168.680. In this way, elections are similar to juries: conducted by regular folks who, in a quiet yet remarkable way, contribute to the success of what Abraham Lincoln called our “experiment in democracy.”

Very importantly, state law requires that the clerks hire individuals from both of the major parties, and have them working together to complete every single task involved in the election. MCL 168.674. As such, there are mutual “foxes watching the chicken coop,” in real time, throughout the entire election process. So, while the election in which you voted could have been “rigged,” that would mean that multiple members of your party working at the precinct or absent voter count board let the other party engage in some level of election fraud. This is improbable at best. In reality, in order to be sure their respective candidates are treated fairly, the two major parties have conjured a way in which bipartisanship creates an election process with a high degree of integrity

Moreover, every aspect of the electoral process is open to the public. This applies to the testing of the tabulators, review of the lists of voters, the voting process at the precincts and absent voter count boards, and the review of the election results as they are tabulated and then accumulated by the local clerk. Because of this transparency, it would be very difficult to engage in large-scale fraud.  If it did occur, it was because your candidate or party failed to observe and keep an eye on the very public election process. If your party was “on the job,” you can feel confident that the election was not “rigged.”

Other mechanics of the actual voting process impact whether or not the election was “rigged.”  As noted above, the tabulators are all tested in public ahead of the election to be sure they have no programming glitches that might improperly allocate the voted ballots. They are then sealed until the morning of the election, when election inspectors unseal them. The tabulators are not connected to the internet; they are “stand alone,” so that they cannot be manipulated from afar.

There are strict controls on the actual ballots. Every ballot is numbered, and they are all accounted for throughout the entire election process. All the ballots used must match the number of voters, as well as the numbers in the tabulators. All of the ballots and other election materials are sealed at the end of the day, again by election inspectors of different political parties, to maintain the integrity of the ballots and the other election materials. The ballots are retained after the election in case of a recount or other irregularities that need to be investigated. Because of the bipartisan oversight of the ballots, “rigging” of the voted ballots is almost impossible.

Finally, the actual voters. To register to vote, an applicant must be a U.S. citizen and a resident of the city or township in which they seek to register, and must provide information to the clerk that is checked by the state for accuracy. The application to register to vote must contain a signature. To obtain an absent voter ballot, the signature of the applicant must match the signature of the registered voter. While conceivably not fool-proof, it would be very difficult to engineer any kind of large-scale fraud in the absent voter process. And to vote at the polls in person, the applicant must present photographic identification or swear that they have such identification. Again, it would be very difficult to engage in large-scale fraud in the in-person voting process
In truth, the two major parties have enacted comprehensive legislation governing how elections in Michigan are conducted, and have designed a system that is transparent, with built-in protections that create a system with a high degree of accuracy and integrity. If election fraud does in fact occur, it is in the best interests of everyone to know about it and determine how to move forward, particularly given that election results could be adjusted based on the discovery of real fraud. But without presenting actual evidence, claims that an election was “rigged” are no more than gossip; an insult to the thousands of election inspectors who work to deliver election results in which all valid votes are counted; damage the legitimacy of every candidate on the ballot; and undermine our shared system of self-government.

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Scott E. Munzel is Of Counsel to Dever Eby Issa, PLLC in Ann Arbor. He practices municipal law and real estate law, and related litigation. He has worked as an election inspector for the City of Ann Arbor since 2008, both at the precinct polls and at absent voter count boards.