Based on a recommendation by Waco-based Magistrate
Judge Jeffrey Manske regarding this pull-out-all-the-stops effort that he characterized
as “fantastic and outright nonsensical” and lacking legal standing, hobbled by
procedural irregularities and begging for evidence, the original suit was
dismissed by U.S. District Judge Alan Albright on Sept. 21; the second amended
complaint was stricken. On Christmas Eve, personable 40-year-old Paul M. Davis –
touting himself on Twitter as “the God-fearing deplorable Texas lawyer for
patriots,” busy helping clients gain exemptions from vaccine mandates – sat
down with retired Waco Tribune-Herald opinion editor Bill Whitaker to discuss
the January 6 unrest and his ambitious lawsuit to overturn 2020 election
results. Below are excerpts from an 80-minute interview and a 35-minute Dec. 30
follow-up interview. This is a greatly expanded version of the Q&A published in the Tribune-Herald on January 6, 2022.
Q: By now,
many of us have seen videos of what happened inside and around the U.S. Capitol
on January 6 and have formed opinions one way or the other. But you were there
amidst the unrest, though you reportedly never entered the Capitol or fought
with police officers. What is the public and news media possibly missing about
that particular day?
Paul Davis:
I think a big one is calling it an insurrection. There was a small group of
individuals who caused the violence or, rather, participated in the violence,
breaking down outer barriers, but other than those individuals I think most
people there were more like me. They were people who were very concerned about
what was going on with the election and just the failure of public officials
and the courts to do a proper audit. People like me feel there was not a proper
audit done and that there are a lot of issues with this election. I think most
people like myself went there with the intent of just standing outside the
Capitol, voicing our opinions. There was no intent to overthrow the government.
We were just there making our views known.
Of most of the people who went in
[the Capitol], my understanding and from the videos I’ve seen and other people
I’ve talked to who were in that situation – there were quite a few from Frisco
who went – the police opened the doors for them. And if you walk up to a
government building and the authorities open the doors and let you in, I don’t
think that’s trespassing. I think it’s egregious that the feds are prosecuting
people who just walked in when police opened the doors. You know, in Texas you
can go to the Capitol and talk to your representatives, so I don’t know why it
would be unreasonable to assume that the same wouldn’t be true for the U.S.
Capitol if the police opened the doors so you could enter. [NOTE: Arguably the most famous of those from Frisco participating in the Capitol protest: real estate agent Jenna Ryan, who called January 6 the “best day of my life,” attributed her presence in the protest to Trump "who said we are not giving up the White House, he said we are going to fight," paused amid the chaos inside the Capitol to video herself touting her business back in Texas and vowed by tweet afterward that she would not serve a prison sentence because of her "blonde hair" and "white skin." She was sentenced to a prison sentence of 60 days.]
Q: Many of the
plea agreements negotiated between January 6 defendants and federal prosecutors
find some defendants insisting they became “caught up in the excitement of the
moment,” including President Trump’s rousing speech at the Ellipse. Is it fair
or unfair to say President Trump incited the protesters, given that he at one
point told them he was going to travel to the Capitol with them? Again, this is
in many of the defense filings and pleadings I’ve read of the January 6
defendants.
Davis:
I think it’s unfair because I watched that speech. In fact, I made it a point
to stay. I was extremely cold, I was borderline hypothermic and literally my
teeth were chattering, but I wanted to hear what President Trump had to say.
Actually, I videoed the entire speech. I’ve seen a lot of Trump’s speeches and
I would say this was kind of a milquetoast speech. Compared to his other
speeches, the energy in that speech was very low. He kind of recited the facts
that people who were following the election integrity movement, the “Stop the
Steal” movement, knew pretty well. They were assertions that were well known to
the crowd. He just went through the stuff that we basically already knew and at
the end he said, ‘So we’re all going to go down to the Capitol and cheer on our
Republican congresspeople who need our support.” I mean, that’s not verbatim,
but that’s largely how I remember it. I don’t remember him saying anything that
would incite a riot.
And, you know, you have to take
into account, too, the people who broke those outer barriers [around the
Capitol grounds], that happened while President Trump was still speaking. So to
conclude that something he said in his speech incited the so-called “riot,”
that’s not correct. That happened while he was still speaking, before he made
his concluding remarks about going down to the Capitol.
Q: Well, how about
John Eastman and Rudy Giuliani and Mo Brooks, who famously talked about
“kicking some ass” in his remarks at the Ellipse?
Davis:
I will say if there was a speech that day where you could possibly be inciting
a riot of some sort – now, I love Mo Brooks, don’t get me wrong. I think his
intentions were good. His speech was much more inflammatory than Donald Trump’s
in my opinion. He was encouraging people – and I don’t remember his exact words
– but I think if you could point to one that would have incited people to be
violent, that might have been one. But, you know, I don’t think that was his
intent. He went through what our Founding Fathers did to rebel against England
and compared it to the current situation. If someone was going to make an
example of this, they could point to that, but still I don’t think that was
necessarily inciting a riot.
Q: Some such
as Matthew Dowd, the former Republican strategist who has left the party over
its transformation from standard or conventional conservatism, have recently suggested
that the anniversary of January 6 be observed with the same reverence we show
for, say, the attack on Pearl Harbor on December 7 or the attack on the Twin
Towers and the Pentagon on September 11. Worthy idea or not?
Davis:
That’s preposterous. The attack on Pearl Harbor cost thousands and thousands of
lives. I don’t know the exact count. I want to say it’s several thousand people
from my recollection. [NOTE: 2,403 Americans died in the 1941 Japanese aerial attack.]
And then the Twin Towers, I don’t know how many thousands of people were—
Q: About 3,000.
Davis:
Yeah, 3,000 – that sounds correct. And on January 6, the only person who died
of anything other than natural means was Ashli Babbitt, who was shot by the
Capitol police. The others were heart attacks and things of that nature, so I
think it’s not a fair comparison. I mean, it’s not even close. The people who
went to the Capitol were overwhelmingly unarmed. Obviously there were a few
people who had some weapons like staffs and things like that, and they broke a
few windows and went into the Capitol – I don’t approve of that, I don’t think
people should have been violent on that day, but to compare it to the attacks
on Pearl Harbor and the Twin Towers, that’s way out of line.
Q: I’m not
sure what the point was of breaking into the Capitol unless it was either (1)
to pursue Trump’s attempt to stop certification of Electoral College votes from
enough states to secure his re-election – a plan highlighted by Federalist Society
member John Eastman – or (2) to take revenge on certain political figures, including
the vice president of the United States. You didn’t go into the Capitol, I
understand that, but am I wrong?
Davis: Yeah, I think you are right. There was a select group of people who did commit violence to break in. [NOTE: More than 725 persons have been charged so far, including Christopher Grider, 40, a veteran and co-owner of Kissing Tree Vineyards in Bruceville-Eddy, who witnessed the shooting death of rioter Ashli Babbitt, and Stacy Wade Hager, 58, of Gatesville, who said he felt "invincible" after he and others reportedly scaled a wall to gain entry into the Capitol. Of the 725 or so, more than 275 individuals have been charged with felonies such as assaulting law enforcement officers, obstructing an official proceeding and destruction or theft of government property.] I think the overwhelming majority of people there were like me. And, actually, breaking into the Capitol would have been counterproductive because we all wanted our congressmen and senators to strenuously object to confirmation of the Electoral College vote on January 6 and to take a look at what really happened before moving ahead with confirmation. Interrupting the proceeding was counterproductive and breaking into the Capitol gave the politicians in favor of confirming the vote on January 6 all the incentive to say, “Oh, this is an insurrection, we need to move forward with this, these Trump people are crazy.”
If you look at the reporting from
Revolver News by Darren Beattie, he has gone into great detail to point out
that so many of the people who were leaders on that day, inciting people to go
into the Capitol – and they have emails and other communications and videos –
none of those people have been arrested. So it’s reasonable to conclude they
are probably FBI assets. I don’t think that’s completely crazy. I think that
needs to be investigated. There’s a lot of people who want to get to the bottom
of that. You see a lot of the people who initially breached barriers and broke
windows were dressed in black, and there’s speculation they could have been
antifa. [NOTE: Darren Beattie is a former Trump speechwriter fired in 2018 for
his affiliation with white nationalists. Later Trump appointed him to the Commission
for the Preservation of America's Heritage Abroad, prompting outcry from Jewish
groups.] The bottom line of what I’m trying to say is most of us out there, the
vast majority of people I know that went to an event like that, people who have
the same views as I have, we wanted
the January 6 proceeding to go forward. To break into the Capitol to stop it
would have been counterproductive.
Q: You have
made a point of differentiating between those who went inside the Capitol and
may or may not have committed vandalism and violence, as opposed to those like
yourself who were outside expressing their First Amendment rights. And I know
you got penalized for that in terms of your employment at the time. My
question: Is Ashli Babbitt a martyr for liberty or a QAnon-infected
insurrectionist?
Davis:
I don’t know a whole lot of detail about Ashli Babbitt and her views, so I
can’t really speak to that. I don’t know what her intention was.
Q: Well, she
was trying to climb through a smashed-out window in a doorway that was
barricaded to get into the U.S. House of Representatives. That’s when she was
shot. There’s video of it.
Davis:
I don’t know if she intended to commit some sort of violence. I really don’t
know. I don’t know why people would think that would be a good solution
because, you know, what’s going to happen, you’re going to hold members of
Congress hostage till the military comes and then there’s a siege and, well, I
just don’t know what the end game would be there. I think possibly people like
Ashli Babbitt – you point out that people got caught up in the moment – I
think that is an easy thing to do. I remember just seeing that atmosphere and
feeling just desperate that our country … that our Constitution is slipping
away because of an illegal election that our officials are not looking into. So
I can certainly understand someone feeling desperate enough to feel that they
had to break into the Capitol to cause violence. I don’t think that’s the way
to go, but I can understand why that thought might have come to somebody’s
mind.
Q: Since
January 6, 2021, many Americans seem to have loosened up regarding what some of
us would term an insurrection. A friend of mine who is a Republican, who voted
for Donald Trump in 2016 and in 2020 but definitely does not approve of the
unrest at the Capitol, now tells me that I simply need to get past all that and
fall into line as a dutiful Republican. Congressman Pete Sessions, whose name
figured prominently in your legal filings contesting the election, and
Republican politician Condoleezza Rice have made similar rationalizations about
January 6 and about this need to get past it. Are they right or wrong?
Davis:
I’m not sure what they mean by “getting past it.”
Q: They’re
saying we need to move on, there are other things Republicans need to be
dealing with, there are other things that lawmakers need to be dealing with.
Davis: OK. Well, I think the idea of “getting past” the questioning of what happened in the 2020 election – I don’t think that’s something we need to “get past” as an issue because there are clear issues with that election. I know the media, when the Arizona audit came out, paraded around the fact that, “Oh, this proves that Biden legitimately won.” What they were pointing to is if you counted all the ballots where the name Biden was checked – yeah, the numbers line up. But the report also found that 60,000 of those ballots had some issue that would have made them illegal under applicable state and federal laws. [NOTE: This is a reference to the months-long hand recount of Maricopa County votes conducted by the Trump friendly Cyber Ninjas, now locked in a dispute over pay and records with the Republican-led Arizona Senate. Election officials in both parties dispute Cyber Ninja claims about some 57,000 “impacted ballots.” On Wednesday, the Maricopa County Elections Department issued a report on Wednesday lambasting the audit as brimming with “faulty analysis” and “inaccurate claims.”] Clearly there are issues that need to be looked into with regard to the 2020 election. We can’t “move on” fully from January 6 until we get to the bottom of this issue because all of the people who went to the Capitol and are being pigeonholed as “crazy insurrectionists” – really, if you look at what happened and you look at all the irregularities, it’s not crazy to conclude that something was wrong with that election and demand that our officials do something about it.
To the extent it’s being called an insurrection and compared to Pearl Harbor and the Twin Towers, I think we do need to get past that because it was not an insurrection. These people did not have the intent to overthrow the government, they had the intent to make sure that our elections were free and clear, which is actually upholding our constitutional form of government. I think it’s a gross mischaracterization to say it’s an insurrection. It’s taking the bad intentions of a few people who tried to break in and caused some violence and extrapolating that to the whole crowd [outside the Capitol]. I do think we need to get past that.
Q: President
Trump will be holding a press conference on January 6 to likely express the very
same claims he did at the Ellipse and before and since – not about his possible
role in the January 6 confusion – and let’s just call it “confusion” at this
point – but about a rigged election. What would you advise him to press in his upcoming
January 6 comments? [NOTE: Trump this week canceled the January 6 press
conference after Republicans and advisers reportedly suggested it might be an
unnecessary distraction and lend further attention to the January 6 mob
violence pursued in his name.]
Davis:
Well, that’s kind of a loaded question. I’m not sure what I would advise
President Trump. I guess I could say if it were me speaking about January 6,
you know, I would kind of reiterate just what I went through. Here’s the issues
with this election, this is still something we need to get to the bottom of. I
will say one thing I would advise President Trump to hammer on, and that’s the
fact we have close to 50 individuals who went into the Capitol, were let in – I
think most of them did not actually break
in – and they’re being held in solitary confinement in really awful,
unconscionable conditions in D.C. and this is cruel and unusual punishment. They’re
being held in solitary confinement against Geneva Conventions, they’re not
getting a speedy trial, they’re not allowed to see their attorneys on a regular
basis, there’s very little privacy.
[Republican lawmakers] Marjorie
Taylor Greene and Louie Gohmert just released a comprehensive report on how
these people are being treated. [NOTE: The Nov. 4 report by Greene and Gohmert described
conditions suffered by the jailed January 6 defendants as “inhumane.” The
defendants, the report said, “continue to be unreasonably mistreated.”] This is
really comparable to a gulag in our own country, political prisoners. The most
you could say is that they committed misdemeanor trespass and they’re being
treated like they committed high treason. This is just something that is not
acceptable and so I would advise President Trump to focus on that as something
we could do and focus on the fact that I think we still need to get to the
bottom of what happened [in the election]. The people who showed up were
overwhelmingly patriotic Americans who just wanted to make sure our elections
are free and fair and, you know, they’re being unfairly characterized as
domestic terrorists.
Q: In the
video posted of you outside the U.S. Capitol on January 6, you said you and
others only wanted to get into the Capitol to audit the votes, to make sure the
votes were audited. What did you expect to find given that state and federal
courts under Democratic and Republican judges and President Trump’s own
attorney general and the Department of Justice said there was no widespread fraud.
Davis:
Well, again, they can say that all day long but just because they say it
doesn’t make it true. There’s all the pressure in the world for these judges to
look the other way. Look at what happened in Michigan where you had the board
or election commission over Wayne County – two of them tried to object and they
immediately faced threatening videos online and people calling for antifa mobs
at their house. They were labeled racists, they were labeled domestic terrorists
and all sorts of horrible things. [NOTE: This refers to the four-member Wayne
County Board of Canvassers, initially deadlocked on certifying Wayne County
election results, then unanimous in certifying them while urging Michigan
Secretary of State Jocelyn Benson to do a “comprehensive audit” of certain
precincts.] So I think most judges, you know, they have pretty comfortable
lives and it’s a great job and they probably don’t want that kind of
controversy in their life. There’s all the incentive in the world to find the
excuse to just move on and not do anything about it, but if you look at the
actual proceedings in all these federal courts, there was not a single
evidentiary hearing. Some will say, “They looked at the evidence, they looked
at the evidence.” Well, looking at the evidence in court requires that you have
a hearing and bring in witnesses and you have them questioned and you have them
cross-examined, and these courts just kind of looked at what was written and
just found one reason or another to get rid of the case. Most of these election
lawsuits were (dismissed or denied because of) procedural issues – you know,
like laches [NOTE: unreasonable delay
in making an assertion or claim] – “You waited too long, you should have
brought this (lawsuit) before the election.” Of course, if you brought it before the election, the courts probably
would have said, “Well, your claim’s not right because no harm has been done
yet.”
There’s a great article in The
Federalist that goes through all the crazy excuses courts used to not do
anything about this. [NOTE: “Courts Repeatedly Refused to Consider Trump’s
Election Claims on the Merits,” Bob Anderson, The Federalist, March 11, 2021.] The
one that stuck out to me the most was one court said if these statutes said
“shall” – I can’t remember exactly what the provision was, but it was something
about the election officials “shall” do whatever it was – and, of course, the
court said, “Well, ‘shall’ doesn’t necessarily mean you have to,” and, of course, that’s ridiculous because that’s the word
you always use in the law when
something is required. Now I can’t remember what the original question here
was, but I think the fact that judges and [Trump Attorney General] Bill Barr
and people like that said there was no
fraud does not mean it’s true and if they said that, they were not looking into
the evidence deeply enough because I think a child could look at what happened
and conclude there was something wrong with the election.
Q: Well, I
remember reading a Nevada court ruling that went into detail about quite a bit
of evidence in making its conclusion.
Davis:
That was the only one, though, and that was a state court proceeding.
Q: Yes, it
was, absolutely. But I remember in another ruling – it was in Pennsylvania – when
Rudy Giuliani, acting as the president’s attorney, actually backed off when he
was directly asked by the judge if he was alleging election fraud. There were
many puzzling moments by the president’s attorneys in some of these lawsuits
that I think gave credence to the judges’ rulings. You obviously would not
agree with me on that.
Davis:
No, actually, I don’t disagree with you on that. I don’t necessarily agree with
the strategy that Rudy Giuliani and some others took. I can’t remember the
exact reasoning he gave in saying, “This is not a fraud claim.” I think they
were trying to just find a legal strategy that they thought would work the
best, but, I mean, just because he said [in court] “This is not a fraud case”
doesn’t mean he was saying there was no fraud. I think that was just a legal
strategy that, for better or worse, Giuliani felt was best to get the relief
they were seeking.
Q: Well, one interpretation is that if he dared
say it was fraud in a court of law and he didn’t have any evidence to back it
up, as you well know as an attorney, the court takes a very dim view of that.
But I guess we could argue all day about this.
Davis: Well, you know, I think that goes back to the
fact that if you bring this up, fraud, then you got to bring in a ton of
witnesses and evidence, and I don’t know why he didn’t pursue that route in
Pennsylvania. Other attorneys throughout the country (did). Like in Wisconsin,
for instance, there was a lawsuit by the Republican Party – I can’t remember
who the attorney was – but the question in that case (involved) hundreds of
thousands of ballots, absentee ballots, that were done in a way that violated
Wisconsin law – that evidence was brought before the (state) supreme court and it
found, you know, procedural reasons to dismiss it. So it’s not accurate to say
other lawyers throughout this case – like you got Lin Wood and Sidney Powell,
which I don’t necessarily agree with their strategy either – but it’s not like
nobody was trying to bring a fraud claim. Giuliani’s strategy in that
Pennsylvania case – the procedural strategy he was pursuing did not involve a
look at whether there was fraud, but that doesn’t mean he was saying there was
no fraud, because I looked at his podcast live and he was saying there was lots
of fraud.
Q: You did what?
Davis:
Giuliani had a regular podcast at places like Steve Bannon’s “War Room” and he
would talk extensively about how there was
fraud in the election. I don’t think Rudy Giuliani was saying there was no
fraud, I think that was just a legal strategy that he was using to go after it
in an election procedural standpoint in Pennsylvania, but that doesn’t mean he
was admitting there was no fraud.
Q: I’ve read
your own legal filings regarding the 2020 presidential election. Why on earth
did you file these in the Waco federal courthouse rather than a federal court
where, say, the court might be more ideologically amenable to such a filing? U.S.
District Judge Alan Albright, though a Donald Trump appointee, seems to have a
pretty conventional view of election law and the Constitution.
Davis: You know, it actually wasn’t my idea to file
in Waco. I am not an election integrity lawyer. I am not an election law
lawyer. I’m just a concerned citizen in all of this. My practice is mostly in
employment law for about 10 years and I’ve done a fair amount of other types of
civil litigation including contract disputes, just general tort, mostly
involving businesses and such. So when everything happened on January 6 the way
it did, it was quite shocking and dramatic to me as a concerned citizen merely
wanting to exercise my First Amendment right to protest, as is the right of all
Americans to do, and the things I saw there with the Capitol police pushing
people down stairs, gassing the crowd where I was, which in my view did not
present any threat – I mean, nobody
around me was armed, it was mostly people who were not a physical threat, a lot
of elderly people, a lot of women, I even saw some children and pre-teens, not
a lot of able-bodied males, certainly nobody with weapons around me – yet standing
there we were tear-gassed and flash-banged and, you know, pushed down stairs.
Q: Yes, but
getting back to my question of why you filed this lawsuit in Waco.
Davis:
Yeah, yeah, and my state of mind – well, the next day I get fired [as associate general counsel at Goosehead Insurance] just because
I exercised my First Amendment right. Well, a lawyer named Kellye SoRelle, here
in Texas, found me. She told me she had
been working on this election lawsuit with another individual named Steve
Vanderbol and they needed a federally licensed attorney to bring a case. They wanted to file it in Waco
because they just felt that, you know, there’s only one judge there, a
Trump-appointed judge. You know, I didn’t do a lot of forum-shopping [NOTE: the
practice of choosing the court or jurisdiction with the most favorable rules,
ideology and judicial disposition for the position being advocated or argued],
let’s just say that. I needed to learn about election law and, as soon as they
contacted me, I felt like I was drinking from a fire hydrant trying to learn
about election law and what the violations were and so I wasn’t really the one
looking around to figure out which forum [or court] to file in. That was more
Kellye and Steve. [NOTE: Kellye SoRelle, 43, of Granbury, an unsuccessful, 2020 Republican congressional candidate in a four-way primary election battle and among the protesters at the Capitol on January 6, 2021, is famously affiliated with the far-right Oath Keepers militia and was recently swept up in an FBI investigation into “seditious conspiracy” arising from the Capitol unrest. A few weeks after this Trib Q&A was concluded, one of her clients, Oath Keepers founder and leader Elmer Stewart Rhodes III, 56, also of Granbury, was indeed arrested on several federal charges including seditious conspiracy “to oppose by force the lawful transfer of presidential power.” The arrest was made in Little Elm, which borders Frisco. Roberto Minuta, 37, of Prosper, which also borders Frisco, was similarly arrested. Steve Vanderbol, Texas-based “entrepreneur” and managing director of the Tattered Flag Project, is presented in the Davis lawsuit as “an expert on how geopolitical events affect the financial markets” who fears that, without prompt remedy by the judiciary, “the economy of the United States will become unstable and cease to be a ‘safe haven’ for financial investors.”]
Q: Fair
enough. They had their reasons then. It might have made sense because he was a
judge who had recently been appointed by President Trump.
Davis:
I think that was the reasoning because in certain districts you file in, you’re
not sure what judge you’re going to get. At least they felt confident that “We
are going to get a Trump-appointed judge” [in Waco]. If I had it to do over
again, Tyler probably would have been a better venue. I think the judges there
are probably a little more conservative, but, you know, I wasn’t specifically
looking at that issue from my part on the case.
Q: Let’s dig
into your filing and look beyond a certain analogy that caused many to poke fun
at you. You suggest that voting protocol changes in all 50 states, undertaken obviously
in regard to a pandemic filling hospitals to capacity and stacking corpses in
morgues, nonetheless violated the law laid down by the Help America Vote Act.
Yet doesn’t our system of federalism specifically allow this wide latitude by
the individual states, as determined by the Founders at the crafting and
ratification of the U.S. Constitution?
Davis:
It does allow wide latitude for states with exceptions. If you look Article I,
Section 4, it does give states the right to conduct elections as they see fit,
unless Congress makes laws (contrary) to that. Congress has the authority to
make laws that affect the place and means of federal elections, so in regard to
federal elections, Congress does have
the constitutional authority to make laws regarding how the elections are
conducted, and Congress has made laws such as the Help America Vote Act.
Q: And you
mention that specific congressional act in your filings.
Davis:
Correct. And the 1964 Civil Rights Act – whichever is the one that has
provisions requiring that all papers and records be preserved for 22 months
after an election – those are laws duly enacted by our Congress under the
Constitution and states are then required to follow those with regard to
congressional elections. [NOTE: This is a reference to a federal law on the books since 1960 requiring election
officials to “retain and preserve for a period of 22 months” all election
records, including ballots in any election for federal office including
the offices of president and vice president, presidential electors
and members of the Senate.] So states actually don’t have the
authority under the Constitution to violate the Help America Vote Act and that
Civil Rights Act requirement to preserve all papers and records. Now with
regard to presidential elections, there’s another constitutional law
well-established by the Supreme Court: If you are a state and you receive federal
funds and there’s condition on it, you have to follow that condition. That’s
contract law. And here every single state receives federal funding to implement
HAVA, the Help America Vote Act of 2002. And so when you receive that federal
funding, you are required to follow that. The states by receiving federal funds
give up their sovereignty to exclusively regulate how presidential elections
are run in their states. When they receive the money, they have to follow that.
Q: Right, and
you’re saying that states violated HAVA through election irregularities. To me,
the lawsuit you filed seems to expand upon Texas Attorney General Ken Paxton’s
December lawsuit challenging the election results
in Georgia, Pennsylvania, Michigan and Wisconsin because those states
implemented pandemic-related changes to election procedures that, Texas
claimed, were illegal and skewed the presidential election outcome. Yours goes
a step further, alleging this of all states and suggesting that all federal
elections in 2020 are illegitimate.
Davis: Yeah, I think that’s a fair assessment. I
would say that going after all 50 states and the scope of the lawsuit was too
ambitious for my britches, but the idea was really Kellye and Steve’s strategy.
They reached out to me because they knew they could trust me because of the
beating I was taking in the media [over the January 6 protest] and that I was
very concerned about the election integrity issues. And Kellye is not federally
licensed so they needed a federal licensed attorney. And the idea was if they
were able to at least file this case and get it out in the news, possibly we
could muster the resources – you know, other attorney would be needed to jump
on the case. Obviously the scope of this case would cost, you know, many, many
millions of dollars. So that was the original idea, but that didn’t end up
being the reality and we didn’t end up getting the support we needed, so that’s
why we had to let the lawsuit go.
Q: Given your strong feelings that
HAVA precludes “election irregularities,” even if pursued by the governors,
legislatures and/or courts of state government, I must ask: Should the state
election code as recently passed by the Texas Legislature then be tossed as an
obvious violation of the Help America Vote Act? And I don’t expect you to know
everything that’s in it, because they have had several different bills over
four different legislative sessions, but you know what I’m talking about.
Davis: Yeah, I can’t really answer
that specifically because I haven’t gone into specific provisions of the bill
and how it would interact with the Help America Vote Act. But as a general
matter, I would say that the Founders’ intent, if you read the Constitution and
the Federalist Papers, is that these states should have sovereignty over how
each conducts its own elections, but at the same time Section 4 of the
Constitution does guarantee each state a republican form of government. So I
think that was really the idea behind Ken Paxton’s lawsuit – that this is what
we signed up for in the state of Texas. We were an independent country and we
joined the United States and, when we did that, we were guaranteed a right to
republican form of government. We believe in state sovereignty and each state
should have the authority to conduct its own elections the way it sees fit, but
if the way the states conduct that goes against that provision guaranteeing a
republican form of government, then I think that’s a problem. If these
procedures in other states open the door and lead to massive election fraud,
then that’s a problem for the other states and it’s not what we signed up for.
Q: But Texas during the 2020 election obviously
expanded early voting by a week, and that was obviously an election
irregularity but one declared by the governor, not the Texas Legislature.
Wouldn’t that seem to qualify as an election irregularity just as in
Pennsylvania and some of the other states? Why is it OK in Texas – I mean, it
seems to pass muster in your own filing – but wrong in other states?
Davis: I wouldn’t say that’s OK in
Texas. I really don’t think Texas conducted a perfect election by any means. I
mean, I think there’s lot of issues and we’re still trying to get an audit here
in Collin County and we’re still trying to audit Dallas County and Harris
County. There were a lot of issues with Texas with regard to how elections were
handled. I mean, part of that – I don’t agree we should have expanded early
voting. To me, the best way to conduct the vote is to have it on Election Day
and count all the ballots on Election Day, and I think the longer you drag out
the process, it opens it up to more forms of fraud. I don’t think it is
different from what other states were doing. I think it was really just a
matter of degrees. [NOTE: After these interviews, the Texas Secretary of State's Office, in a Dec. 31
progress report on Phase 1 of the state's forensic audit of the
2020 election focusing on Collin, Harris, Tarrant and Dallas counties, found little evidence confirming repeated allegations by Republican Party
officials of widespread election fraud and discrepancies. Interestingly, a total of 67 potential votes cast in the name of deceased people are under investigation. Of those, 3 were cast in Collin County, 9 were cast in Dallas County, 4 were cast in Harris County and 1 was cast in Tarrant County. On the other side of the coin, since November 2020, 224,585 deceased voters have been removed from voter rolls in Texas, "indicating the counties are performing their fundamental duties under federal and state law to maintain the accuracy of the statewide voter registration list and mitigate fraudulent activity related to potentially deceased voters." Also, the report indicated that statewide, a total of 11,737 potential non-U.S. citizens were identified as being registered to vote. Of these, 327 records were identified in Collin County, 1,385 were identified in Dallas County, 3,063 were identified in Harris County and 708 were identified in Tarrant County. While counties still have a significant number of pending investigations to complete, so far Dallas County has cancelled 1,193 potential non-U.S. citizen records, Tarrant County has cancelled one record, and Collin and Harris have not cancelled any potential non-U.S. citizen records. Final findings "will be verified during Phase 2 of the full forensic audit."]
Q: Well, should the counting of votes just be
cut off at a certain time?
Davis: You know, I’m not an election
integrity expert by any means. I don’t know exactly the best practice, but it
seems to be the consensus among most election integrity experts that conducting
an election on Election Day and counting the ballots the same day – and I don’t
speak really to what the ideal cutoff would be – but my general thought is the
longer you drag out early voting, the more open it is to various forms of
fraud.
Q: Isn’t it a
little disingenuous to claim in your lawsuit that many so-called “election
irregularities” opened the door to fraud when in fact these were undertaken in
the thick of a plague to keep voters safe? Surely that was the point of the
election irregularity in Texas that extended early voting by six days. And the
Texas Secretary of State’s Office reported no problems afterward.
Davis:
I think it’s disingenuous they used the COVID safety issue as an excuse to drastically
and dramatically relax election security procedures. I don’t think it’s a good
excuse to open our democratic election process for electing public officials to
various avenues of fraud. I mean, Anthony Fauci was on TV saying it’s safe to
go out and vote. (Laughter.) I mean, he literally said that. [Note: Just for
the record, Fauci, director of the National Institute of Allergy and Infectious
Diseases, said in-person voting could be done safely only if polling places
enforce mask-wearing and social distancing guidelines and voters follow these
guidelines.] And then we find out the surface [viral contamination] spread is
not really a big concern in how we get it. Remember all the experts who said
you can get it by touching things?
Q: Yes, but that was well before the general
election.
Davis:
Right. But I think the fear and concern for people’s safety with regard to
COVID-19 was massively overblown. I think it was purposely overblown, so that
the Democrats came in and brought like 400 lawsuits to change all these
election rules. And I think that’s how they stole the election.
Q. Your
temporary restraining order filing of Jan. 21 proposes that department heads in
the Trump administration as of August 2020 serve as stewards, à la “The Lord of the Rings,” to
preserve the Trump policy status quo from any changes pressed by the Biden
administration, which would remain in limbo till matters can be sorted out, up
to and including new nationwide elections. Don’t you feel this scheme might
have been seen as weakness by our many enemies around the world, especially
since this proposed order also puts Congress on ice and leaves only one branch
of government fully empowered?
Davis:
Yeah, I think that’s a valid concern, but on the other side of the coin there’s
a lot of concern that the whole election process was not legitimate in the
first place, that this too is going to show weakness, that there’s a real
vulnerability to our democratic process. So I don’t think you can avoid that. I
was just trying to find a solution to the fact that it appears there were some
real problems with this election. I don’t think a [court-ordered] remedy is
going to add much to that. We’ve seen that all of Joe Biden’s (mental) faculties
are not there, and I think that is an even bigger threat. I don’t think the
stewards would have been the thing that drew the appearance of weakness.
Q: Do you wish you had never borrowed from “The
Lord of the Rings” in that one filing? I know you caught an awful lot of flak
about that Kingdom of Gondor reference. Was that just something you came up with at
the 11th hour? [NOTE: To quote a footnote in the Jan. 21 Davis filing: “Since
only the rightful king could sit on the throne of Gondor, a steward was
appointed to manage Gondor until the return of the king, known as ‘Aragorn,’
occurred at the end of the story. This analogy is applicable since there is now
in Washington, D.C., a group of individuals calling themselves the president,
vice president and Congress who have no rightful claim to govern the American
people.” In fairness to Davis, the suit also notes his remedy is “similar to
the concept of placing a corrupted business in receivership or in bankruptcy
law, which places a ‘trustee’ in charge of the ‘debtor-in-possession’ during
the bankruptcy case to rehabilitate the corrupted organization.” Davis also
emphasizes the critical role of the federal judiciary as “the last
constitutional safeguard against such tyranny to prevent the immediate and
irreparable harm of the Usurpers from enacting laws and policy without the
legal consent of the People.”]
Davis: Yeah, so I remember that night
I was under a lot of pressure. The people I was working with were putting a lot
of pressure on me to get everything filed so we could move forward with trying to
get the court we needed and get this out there to other attorneys who might be
willing to help us and people who might be willing to fund the lawsuit because
lawsuits are obviously very expensive. So I was under a lot of time pressure
and, for reasons I stated somewhere, I was basically up all night. When I wrote
that one [about the kingdom of Gondor], it was sometime in the middle of the
night – you know, maybe 3 in the morning or something like that – and I just,
you know, I like “The Lord of the Rings,” you know? I think a lot of people
like “The Lord of the Rings.” It’s a great classic work of literature and I
just thought, you know, well, there was a situation there where there was not a
legitimate government and so, for whatever reason, for better or for worse, I
decided to make that analogy.
Yeah, in hindsight,
I probably wouldn’t have made that analogy if I had known the media was going
to feed on it, but as I pointed out to a reporter who interviewed me from Law
& Crime, you see literary analogies in legal briefs all the time. It’s not
all that unusual. It’s a little hypocritical that that was used against me, the
fact I made a literary analogy.
Q: Would it have been wiser not
to use an analogy involving a king?
Davis: (Laughter.) Yeah, I agree with
that. I agree with that.
Q: Among the filings in your case
is what one might even call an economic manifesto by Steve Vanderbol, who was behind
this legal effort. What is his suggestion about the economics of the United
States in regard to 2020 election irregularities?
Davis: If I can recall correctly, his point was that
if it is true that our elections cannot be relied upon because of all these
instances of fraud, and if people lose confidence in American elections and we
can potentially have an illegitimate regime in control, that’s all going to
have some major financial implications where people lose faith in the
credibility of the United States government. I think that’s what he was trying
to convey.
Q: Right. I’ve read it. He seems
to be suggesting the economy in terms of investing is endangered by all this
election irregularity.
Davis: I think he was trying to make
that point, yes.
Q: Do you think his broader ambitions in regard to this lawsuit ignored the realities of too many plaintiffs in the legal stew?
Davis: Yes, I think his overall plan
that I was following and trying to put in a legal framework was
just really
unworkable. I kept telling him, “Steve, we have no other attorneys on this
case, and according to you we have no funds coming in – I mean, I’m not
managing the money, but that’s what you’re telling me.” According to him, we
raised just enough to get the lawsuit served. And I was like, “We have no
resources. We’re like some small country whose military has declared war on the
entire world and we have no allies.” You know, it’s not feasible. And he would
be outraged and kept telling me to trust the plan and he had all these people
he was engaging, and I had no idea what he was working on and if he could ever
show me a plan. It was just typical gaslighting type stuff. And I was just trying
to trust him.
Q: I notice that you’re helping clients get
exempted from employer or government mandates on vaccinations. Obviously the
far right’s solution of herd immunity is not
working. How would you address a pandemic that is obviously killing a lot of
people and making a snarling mess of our economy?
Davis: Well, how do you know that natural immunity
is not working?
Q: Well,
doctors have said so. Doctors are seeing people who have had and survived
COVID-19 before wind up back in the hospital. [NOTE: The first confirmed U.S.
death caused by the omicron variant involved a man in Texas who previously
had COVID-19, Harris County health officials said. A study published in August
about COVID-19 infections in Kentucky among people previously infected with
SARS-CoV-2 indicated unvaccinated individuals are more than twice as
likely to be reinfected with COVID-19 than those fully vaccinated after
initially contracting the virus.]
Davis: Not all doctors are saying that. Did you
watch the interview with Pete McCullough with Joe Rogan? It’s been very
popular. I would recommend listening to that. He’s one of the foremost internal
medicine doctors. He’s the most published internal medicine doctor in the
world, I think, and he goes extensively into the studies that show that natural
immunity is actually a thing and it
does persist for quite a while, possibly a lifetime. [NOTE: Dr. McCullough, a
Dallas cardiologist, told talk-radio host Joe Rogan on Dec. 13 that the
pandemic was planned, the COVID-19 vaccines are experimental and previously
infected people have “permanent immunity.” Baylor Scott & White Health has
reportedly sued McCullough, alleging he illegitimately affiliated himself with
its facilities when promoting controversial views about COVID-19.] The CDC has admitted now that vaccines
do not prevent transmission of the delta
variant or omicron variant. What’s the point of the vaccine mandate? If we need
to do it to protect others, to protect fellow Americans, yet it doesn’t prevent
transmission, then what’s the point of vaccine mandates? Your question is
premised on the assumption that natural immunity does not work, but I think
that’s pretty unfounded. You’re relying on the statements of doctors who
presumably – a lot of these doctors get a lot of their money from Big Pharma,
you know, for prescribing certain medications. You might find this interesting.
I got a letter from a doctor recently that he had gotten from various medical
boards stating, “If you spread misinformation about the vaccine or about
COVID-19 and other treatments such as Ivermectin, we’re going to go after your
medical license.” That’s essentially what the letter said, so you’ll have to
forgive me. I’m a little dubious as to what doctors are saying in public about
this when their medical licenses are being threatened if they say anything
other than the official state narrative coming out of the White House and the
CDC.
Q: The other
day President Biden said there is no federal solution to the pandemic, that the
matter is largely up to individual states. What should we expect of the
states?
Davis:
To control the spread of coronavirus?
Q: Yeah.
Davis:
Well, I think the states should trust their citizens to be responsible. States
should look at the actual data rather than just buying into the propaganda that
the only solution is vaccines. If you look at that interview with Pete
McCullough, he talks about how shocking it is that there is not a single
protocol out there that’s being promoted by any medical organization in hospital
settings or out-patient settings about preventative care. I think the only
solution to talk about publicly is (unfortunately) vaccination. And why is that? I think the
state health departments ought to look very closely at how successful these
vaccines really are. Why are they not looking at early therapeutic solutions?
Why is Ivermectin being suppressed? I can give you a personal example from this
last week. I had a client who was pretty much dying in [a North Texas hospital].
The doctor told her, word for word, ‘You’re going to die.” He gave her a death
prognosis. They wouldn’t release her. I went down there and threatened to sue
them for false imprisonment and got her out of there. Put her on Ivermectin,
put her alternative therapies. And guess what? She recovered. The state needs
to look at things like that.
Q: I agree
with preventative steps, but even masking has been attacked in the present
political setting.
Davis:
Well, correct. To me, masking is as ludicrous as trying to keep mosquitoes out
of your backyard with a chain-link fence. The gaps in a cloth mask are .3
microns and the virus is estimated at .1 micron, so the cloth mask is not
going to keep the virus from going in and out. There’s no real reliable study
out there showing that masks make a whole lot of difference with regards to
spread. One solution is you just rinse your sinuses every day with a solution
of Betadine and water. That actually will prevent you from getting it. States just
ought to look at other things. We’ve already been doing masks and we’ve already
been doing vaccinations and it’s clearly not slowing this thing down, so, you
know, why don’t we consider things other than those? But apparently you’re not
allowed to do that. [NOTE: Just for the record, Mayo Clinic COVID-19 expert Dr. Gregory Poland says the "idea behind an N95 mask is it has a filtering ability down to, and actually below, the size of SARS-CoV-2, the virus that causes COVID-19. So the coronavirus is about 0.12 microns in diameter and N95 (masks) protect down to 0.1 microns, with 95 percent efficiency, which is where it gets its name."]
Q: You lived
in Waco during your tenure at Baylor University. Did your undergraduate years
at Baylor influence your contemporary thinking? Did Waco?
Davis:
Generally speaking?
Q: Yeah,
generally.
Davis:
I love Waco. It’s a great town and I wouldn’t mind … it’s a great place to
live. There’s a lot of beautiful places. I used to love just hiking along the
dam at Lake Waco at sunset. It’s just a very peaceful environment. I used to
love hiking through Cameron Park. You know, I like the Cameron Park Zoo. It’s a
great zoo for a town like Waco certainly.
Waco is just a great place. It’s not really crowded, traffic’s not bad
and people generally have conservative American values. You know, there’s a
church on every corner. I didn’t get the benefit from the whole Chip and Joanna
Gaines complex when I was there. I have been back to visit and I think it’s
great. As for my time at Baylor, I studied business. My understanding from
talking to some of my classmates who were in the liberal arts college is there
is a fair amount of Marxist indoctrination there, but being in the business
school I wasn’t really exposed to a lot of that and I was able to maintain a
lot of my conservative Christian values through that experience.
Q: I’ve heard
this about a lot of universities from conservatives who feel they don’t
have a platform to discuss their views. When you refer to Baylor, is that what
you’re referring to or is it something else?
Davis:
Well, I think just as a general matter, if you look at how academia has changed
over the years, it started in the early 1900s when you had American professors
going to Germany and the Frankfurt School [the Institute of Social Research] and learning essentially revisionist
history with a strong Marxist viewpoint, and then they brought that back and
started teaching that in American universities. And that became really the
pervasive kind of default for teaching humanities from this Marxist/social
justice perspective. So you had a lot of that going on at Baylor. Being in the
business school, I never felt like I really experienced a whole lot of that, as
far as specific instances. I took AP courses in history and stuff in high
school so I actually didn’t even take history at Baylor. But I remember one time
I was talking to a classmate who grew up very conservative and she was talking
about all the things she was learning in – I can’t even remember what class it
was – but she said, “I have to admit it, I’m a liberal, I’m a leftist.” And I
thought, “Wow, OK.” So there is some indoctrination going on there.
Q: I know you just got back from the Turning
Point USA conference. What was the highlight for you?
Davis: You know, my favorite was [conservative radio
host, lecturer and Prager University founder] Dennis Prager. I want to make a
highlight video of the things that he said because he went through all the
common lies you hear about America from the left and he did so in very simple,
easy-to-communicate-and-understand ways, and I just think he’s a brilliant,
brilliant man and I really love his content and I love the videos they do so it
was a real thrill to see him speak in person. I’ve never seen him speak in
person, I’ve listened to his radio shows. And I’d say the other highlight,
maybe the main one for me, I got to meet Brandon Tatum [a former police officer
and author of "Beaten Black and Blue: Being a Black Cop in an America Under
Siege."] because I’m a huge fan of Brandon Tatum and what he stands for
and I got to chat with him for a few minutes and take a picture. That was a
huge thrill. He goes by “Officer Tatum” and makes a lot of videos. He works a
lot with Candace Owens on the Blexit movement [a campaign to “uplift and
empower” minorities and encourage black Americans to abandon the Democratic
Party] and he speaks those types of issues.
Q: In your legal filings, you state
your efforts are undertaken for neither the Democratic Party nor the Republican
Party. Yet in a footnote in your Jan. 25 legal memorandum, you acknowledge you
personally favor Donald Trump as “an outsider and not inherently tainted by a life in
corrupt politics,” and you further view his policies as “good for common,
everyday Americans as opposed to elites, and not for any other reason.” How is
Donald Trump not an elite? He is a billionaire real-estate mogul and casino
operator and a reality TV star – I used to watch his show – but he was
clearly born with a silver spoon in his mouth. How is he not an elite as
opposed to, say, Beto O’Rourke or Adam Kinzinger or George W. Bush, who, after
all, did struggle on his own in the West Texas oil patch?
Davis: The proof is in
the pudding in how much everyone in the political establishment hates him.
(Laughter.) I mean, you know, Trump in his speeches says, “They don’t hate me,
they hate you. I’m just in the way.” And that really sums it up. His policies
were designed to give power back to the people. He wanted to address these
massive spending bills that were coming out, he wanted to privatize medicine
again by getting rid of Obamacare, and he lowered taxes. This whole idea
that the only taxes he wanted to lower were for rich people? That is completely
unsupported by the tax policies. I personally saved a lot of money. I know a
lot of people who had a lot more money in their pockets. Domestic energy
production is another – for the first time we were a net exporter of energy, we
were energy independent for the first time in I don’t know how many decades. And that’s a gift to the
average American. It doesn’t benefit these big businesses and industries. It
helps the average American.
Q: The sum of all your legal filings
make clear this is all about election integrity, not reinstating the former
president. Yet I would presume your efforts have found favor with the former
president and his allies. Have you heard from any of them?
Davis: No, surprisingly not. For
whatever reason, it just didn’t gain the traction that we thought it would and
we didn’t get the support we thought we would. You know, I was kind of
surprised there wasn’t more support for what we were trying to do. It was against
my better judgment to keep the case going for as long as it did when it became
clear we weren’t going to get the support we needed, but unfortunately I’m
just a very trusting person and Kellye SoRelle was no longer on the case.
Q: It looks to me like the parties kind
of fell apart about a month or so after the original filing.
Davis: Yes, they did. Steve Vanderbol kept assuring me. I was working on the
lawsuit and his thing was to garner the support and get the resources we needed
together, and he kept assuring me that he was doing that and it was all going
to come through and I just trusted him a little too much – a lot too much,
actually. I probably wouldn’t have continued the lawsuit as long as I did
without Steve’s influence.
Interview
conducted, condensed and edited by Texas journalist Bill Whitaker. A mercifully
shorter version of this Q&A was published in the January 6, 2022, Waco
Tribune-Herald.
