Franken's Legal Team Makes First Huge Blunder

Remember that old Jim Croce tune?

You don't tug on superman's cape
You don't spit into the wind
You don't pull the mask off that old lone ranger
And you don't mess around with Jim?

Somebody should tell Al Franken's legal team that in Minnesota, you don't mess around with Ken.

As in Ken Raschke, the long-time Assistant Attorney General who penned the official Attorney General Opinion sought by DFL Secretary of State Mark Ritchie on the issue of whether Minnesota law allows the review of rejected absentee ballots.

Today the State Canvassing Board voted to give itself more time to decide the issue.

Here (PDF) is Raschke's legal analysis, no doubt also researched and authored by the other two lawyers from the AG's office, Solicitor General Alan Gilbert and Deputy Attorney General Christie Eller.

Here (PDF) is the Franken legal team's "Supplemental Memorandum" on the Raschke's opinion.

Incredibly, the memorandum reads, "With all due respect to the Office of the Attorney General, the November 17 letter contains significant errors."

For those of you who didn't attend law school, one of the first things you learn is that any time you say, "with all due respect," you're really telling the other side, "f*#% you."  Most lawyers avoid the phrase like the plague. 

And smart lawyers never impugn the integrity of the full-time attorneys in the Attorney General's office. These lawyers refrain from insulting the AG's office not only out of respect for the public office, but also because they know that what goes around comes around. The AG's office is a permanent part of the legal structure.  The AG lawyers assigned to different areas have usually practiced in those different areas a long time. They know what they're talking and writing about. 

That's certainly true of Ken Raschke. He has weighed in on many an AG's opinion on election matters over the years, and Minnesota lawyers on both sides of the aisle highly respect him. [See page 8 of this document detailing Raschke's career. ]

The Franken legal team's Memorandum contains other hilarious stuff. What Republican won't chuckle over Franken invoking Bush v. Gore? The Franken team says the AG's office "neglects the Equal Protection recount requirements set forth" in that decision. 

The Franken lawyers also argue a Washington Supreme Court case, McDonald v. Sec. of State, mysteriously overlooking the not inconsequential facts that the Washington Court was interpreting Washington law, and that the Washington elections system -- where about 75% of the voters vote a mail-in ballot -- is Washington's apples to Minnesota's oranges. [Our state, of course, does not have mail in ballots.]

The Franken Memorandum is so insulting and so off target that it begs the question, "Why submit it?"

Norm Coleman's legal counsel, Fritz Knaak, was asked that question today, and he answered that he thought the Franken legal strategy was to set up the public relations rubric [my words] whereby the Democratically controlled U.S. Senate can seat Franken, no matter how our recount turns out, under some semblance of alleged authority.

The Franken lawyers signing the Memorandum are lead counsel David Lillehaug and Steven Kaplan from the Frederickson & Byron firm and William Pentelovitch from the Maslon Edelman Borman & Brand firm.

But the betting among Republican lawyers I talked to is that the Memorandum was likely drafted by the other part of the Franken legal team, led by U.S. Sen. John Kerry's lawyer Marc Elias.

Lillehaug and the other Minnesota lawyers know better: You don't tug on superman's cape, you don't spit into the wind...