This is a rush transcript from “Your World with Neil Cavuto” December 3, 2020. This copy may not be in its final form and may be updated.
NEIL CAVUTO, FOX NEWS ANCHOR: All right, thank you very much, Bill.
We are following very closely the governor of California, Gavin Newsom.
He’s outlining really the strictest provisions since the height of the
pandemic back in March and April because of the serious spike in cases.
Governor Newsom, among other things, is looking at stay-at-home orders and
trying to make this as voluntary as possible, but hinting that, if people
do not cooperate, there could be problems. He’s dividing the state into at
least five regions. And lockdowns would last for a minimum of three weeks,
which will take us right to the cusp of the holiday season.
So, what happens right now? We’re over the fallout. Also going to be
getting reaction very shortly from the governor of Ohio, who has put his
own state on a — well, a no-travel list, if you will.
In the meantime, William La Jeunesse in Los Angeles with the latest for the
Golden State and how far this crackdown goes.
WILLIAM LA JEUNESSE, FOX NEWS CORRESPONDENT: Well, Neil, as you said, and
this is being driven by hospital and ICU bed capacity.
And, basically, what the governor said, as you said, the state is being
broken into five regions. And as each region hits 85 percent capacity and
they’re reaching their limitation, if you will, 85 percent of the beds
being full in the ICU, that will trigger, if you will, these new
And, basically, what it means is, obviously, restaurants, indoor, outdoor,
closed, hair salons, massage parlors closed. Schools can be reopened on a
partial basis. There will be a little wiggle room there for them.
Also, you can walk, and you can bike with your partner, but no large
gatherings at all. And, basically, the governor is saying, hey, this is an
intent, obviously, to get a control on this now.
Santa Clara County and parts of Northern California are supposed to hit
that threshold probably today or tomorrow. The other regions are saying by
Also, I meant to say that retail would be limited to 20 percent of
capacity. So, if you have a small boutique, that can be two people. If it’s
a big box store, this can be something else. But we remember what that was
like back in March and April, if you will.
And the governor says that’s going to be at least until New Year’s Day. And
he believes that those mitigations, if you will, will help reduce the
caseload and the stress on the hospital system.
They are opening two facilities, ARCO Arena near Sacramento, and also
Imperial Valley College out near El Centro, which has had a surge of
patients there. And they are over capacity there in the ICU beds already in
And there are nine other facilities that will open with 100 to 200 beds, as
required — Neil
CAVUTO: William, thank you very much, my friend, William La Jeunesse in
California, where they’re really cracking down.
Reaction now from Dr. Amesh Adalja, what he makes of all of this, the Johns
Hopkins Center for Health Security, much, much more.
Doctor, these seem like fairly sweeping measures. And I imagine California,
though it has the most — certainly the most startling spikes of the
country, they will not be the last to make moves like this. What do you
DR. AMESH ADALJA, INFECTIOUS DISEASES SOCIETY OF AMERICA: Yes, I do you
think that what you’re seeing is hospitals really going back into crisis,
something that we hadn’t really thought about or talked about since —
since the spring.
We saw a little bit of that during the summer. And I think this is a metric
that everybody is most concerned about, that when hospitals can’t provide
care, when they can’t provide care for COVID patients or people for heart –
– with heart attacks and strokes and car accidents, that becomes a concern.
And there has to be (AUDIO GAP) get control of these cases and keep them
from landing on vulnerable populations that end up in the hospital. And
many places don’t have the ability to test, trace and isolate, especially
with how much the burden of cases are.
So, governors increasingly are back in the same position they were in early
on, without a really coherent testing strategy, and not enough contact
tracers. They look at these blunt tools, and they try to deploy them.
And I think that it’s sad that we’re back to the same position again.
CAVUTO: I’m wondering, too, this is a different metric, right, Doctor, that
they’re using to sort of clamp down on things. It used to be how many cases
you have, and what’s the percentage of positive cases.
This is most acute where it is in a region or a hot zone where hospital
capacity has declined markedly. What do you think of that?
ADALJA: I think that’s a better way to think about it, because, remember,
all of the flattening the curve was really about was trying to stay below
And when we saw people that were getting infected at high numbers, but not
impinging on the hospitals, that’s a different type of a situation than
we’re in today. And, really, when you look at hospital capacity, that’s
what you — where you run into all those problems, where you see excess
mortality increase, where you see hospitals unable to render care.
So, I do think that this is a better way to look at this, because we know
that we can’t get cases down to zero. We know we’re going to get spread,
because this is a virus that spreads so efficiently, that’s established
itself in the human population.
What we have to do is reduce the harm the virus causes. And hospital
capacity is the way we actually can focus our efforts on reducing the
damage this virus is causing.
CAVUTO: You know, it occurs at the very same time we have vaccines readily
available, one, of course, that was just approved in the United Kingdom,
Pfizer’s drug that it made in conjunction with BioNTech.
It’s a matter of time before, I guess, Doctor, the FDA does the same, but
others are waiting for approval themselves, Moderna not too far behind
Are you optimistic that, by the end of this year, early next year,
significant doses will be out to mitigate all of this?
ADALJA: Not by the end of this year. I think, by the end of this year, we
will start to see health care workers, we will start to see some nursing
home patients start to get vaccinated.
But, really, to get through this winter, it’s going to be without the
vaccine for the bulk of the population. So, I do think there are going to
be some very dark weeks and months ahead, because this vaccine, really to
see this impact, we have got to get closer to herd immunity.
I think that once enough of the nursing home populations are vaccinated,
maybe as we get into the new year, we will start to see some pressure
alleviate on hospitals. But it’s going to take some time to see the impact
of this vaccine.
CAVUTO: All right, Doctor, we will watch it closely. Thank you, as always,
for taking the time.
I wish you good health. And you have been a great help to everybody just
getting a lay of the land and where we stand on all of this.
As the doctor was wrapping up there, we are hearing that Pfizer is citing
some vaccine supply chain issues, not severe, but enough to take at least
some of the cream off the Dow earlier on, when we were up in excess of 200
points, still a gain for the markets here, but concern, again, about
getting this out and some of the supply chain issues that come up, not only
here, but abroad, across the world.
That’s going to probably be a given, but not to be startled by that. Just
letting you know that that is one of the issues they’re working with.
But the virus itself and surviving it is not as insurmountable as it used
to be, particularly for a vulnerable set of the population, like the
elderly or those with extenuating conditions.
So, you can imagine how worried folks were once Chuck Grassley got word
that he had tested positive for the virus. He was asymptomatic. But the 87-
years-young Iowa senator was not an easy target for the — for the virus.
I caught up with him earlier today, in his first interview since coming
back to work since dealing with all of this. He says he feels just fine,
and targeting the virus is finer still.
Take a look.
SEN. CHARLES GRASSLEY (R-IA): I feel very well.
I was fortunate that it was asymptomatic. And I was quarantined for 14
days. I got a lot of well-wishes. And I appreciate your well-wish right
CAVUTO: Well, we were reaching you. And I had urged your staff to say you
could tune into my show if you needed your sleep. So, maybe that helped.
CAVUTO: But, Senator, it is always good having you.
Let’s get right to the mechanics here.
CAVUTO: This $908 billion stimulus measure that is out there, are you for
it? Are you open to it?
GRASSLEY: I’m open to it within these parameters.
The dollar amount, as long as it doesn’t get higher, would be maybe
acceptable, but what’s in it? I’m not a big fan for a lot of money for
state and local. But there are so many things that have bipartisan support
And the most important thing is, I think there is a general understanding
among all Republicans that we need to do something. And as long as that
figure is lower than higher, and it can’t be as ridiculous as $2.2 trillion
that Pelosi wanted, and it better not get more than $900 billion.
And we just need to do something. And I think there is a good chance we can
You quoted Schumer, Pelosi, McCarthy. I think you would get good vibes from
McConnell today on this. So, I think there is a good chance we can
accomplish something and we should accomplish something.
CAVUTO: Let me ask you a little bit about Senate Republicans and their
concern that the president has already promised to veto the defense bill as
it stands right now, unless protections given social media companies are
wiped out, in other words, that they cannot fall back on 230 to shield them
Some of your colleagues, including Senator Inhofe, have said this has
nothing to do with the defense appropriation, even though he confers with
the president on some of these social media concerns that go too far.
What do you think of this?
GRASSLEY: Well, first of all, defense is the number one responsibility of
the federal government.
And for six years in a row, we have always passed the defense
reauthorization bill. So, it’s very important that we support our troops
and get this job done.
Now, it happens that I agree with the president on 230. We need to do
something about that. But I don’t — I don’t know whether I agree with him
that it needs to be done on this defense authorization bill, because it is
important that we get it done. I hope that it could be done this way, but
it shouldn’t hold up the entire bill.
CAVUTO: All right. He insists right now that that should be the case, and
that is exactly what he is going to do.
If he keeps insisting on it, what are you going to do?
GRASSLEY: Well, I will — one way or the other, we’re going to pass a bill
and get it there, with 230 or without 230.
And then, if he vetoes it, I guess there would be great discussion with the
president on the importance of not vetoing it. But, if he did veto it, it
would be subject to an override.
And I don’t want you to ask me right now if I would vote to override or
not, because I don’t have that mind made up. But I want to vote for a
defense authorization bill one way or the other, 230 or not 230.
CAVUTO: Senator, there are reports, The Washington Post and others, saying
that the president is considering firing Bill Barr as attorney general
because he has said that the president’s claims that fraud is on a rampant
scale has simply not evidenced themselves, the attorney general saying
whatever happened didn’t affect it on a grand scale that would have changed
First, do you agree with the general on that, and, secondly, the
president’s reported wish to fire him?
GRASSLEY: Well, we know that there is fraud in the elections. Maybe that is
true of a lot of elections. Is there enough to overturn the votes? So far,
I haven’t seen it. But that doesn’t mean it is not there. And there’s a lot
of court cases going on.
And I think the extent to which both Bill Barr and the president would hold
in reserve until these issues are brought out before a judge and get
discovery and get everything out there, so we know how bad it is before we
draw any conclusions.
I don’t think the president should fire Barr, but I think Barr should have
been a little more reserved in what he said about — about fraud.
CAVUTO: Do you think Joe Biden was the duly elected president of the United
States, he is the president-elect, will be sworn in, should be sworn in on
GRASSLEY: Well, we will know that two weeks from yesterday, December the
14th, when the Electoral College meets.
CAVUTO: I understand that, sir, but do you — do you agree with that?
CAVUTO: Do you think, as the attorney general said, while fraud,
malfeasance might have been going on, it was not in — to the degree that
it would have changed the outcome that we see now?
GRASSLEY: Well, right now, with the certification that the states have
given — and you can kind of add up the electoral vote — it kind of
implies that, on December the 14th, Biden is going to be president-elect.
But I don’t think you should use that title until it is certified by the
CAVUTO: Do you think that, once that is official, once it comes in — as
you say, in less than two weeks, when the Electoral College meets, that,
whatever grievances the president has, he should stop the fight,
acknowledge that Joe Biden should take office on January 20, go to the
inauguration, do all the things that presidents have done in the past?
GRASSLEY: I would not pretend to give a president very much advice, except
on policy. And this is more of a political question, so I won’t give advice
I would only say that, if the president wants to run for reelection in 2024
— and there is some talk of that, and I’m not going to comment whether he
should or not — but if he wants to, the more gracious he is as he leaves
on January the 20th, I think the better people would feel about his being a
candidate for reelection, particularly the 70 million people that think he
was cheated out of this election.
And there is reason to believe that — that there is plenty to be concerned
about with the — with how a lot of mail-in ballots were handled in various
states. That doesn’t necessarily imply fraud, but it could mean that state
laws weren’t followed as appropriately as they should be.
Like, for instance, you would just expect, when you’re counting ballots,
you ought to have one Republican and one Democrat at the table to determine
whether or not a mail-in ballot is a legitimate ballot. And that hasn’t
been done. And it — maybe it is not done often enough.
But that is the way it ought to be in the future. And that is a lesson we
have learned from this election. We let the Democrats change state laws
through the courts for three or four months before the election. And I
don’t think that we took it as seriously as we should.
And it tells us now that individual state legislatures need to go back and
overturn those court cases by changing the law, so that we in the future
know that we’re never going to be — nobody is going to be cheated in any
way whether their vote really counts or not.
And we are going to make sure that anybody that casts an absentee ballot is
really the person casting it. You can’t do like what you’re doing in
Georgia right now, having one person cast — request ballots for dozens and
dozens of people. It is just open for fraud.
And Jimmy Carter said that mail-in voting is just a unique possibility for
fraud. So, there is a Democrat that is well-respected that ought to be
CAVUTO: You know, Senator, you mentioned Georgia.
And there has been quite a back-and-forth between the president and the
governor of Georgia, the secretary of state, the lieutenant governor, all
of whom have been sort of, you know, wincing at the president’s criticism
that they botched this or that they’re not being vigilant enough in the
various counts that are still ongoing.
What do you think of that and how the — what the secretary of state in
Georgia has called the president’s tone, that it could lead to some bad
things, maybe even violence?
GRASSLEY: The president should do everything he can on Saturday, when he
has his rally, to get every Republican that voted for him out to vote and
some people that maybe didn’t vote for him out to vote, those people that
are scared of a Biden presidency with a Democrat senator.
He should stick to script. Forget ad-libbing. Don’t talk anything about how
he was cheated out of being president of the United States. Do everything
to unite the Republicans in Georgia, so that we have a firewall against the
progressiveness of this Biden administration.
And — and that is what he should do. He should go down there and basically
keep to script.
CAVUTO: Do you think, though, that his comments are going to hurt the
Republican senatorial candidates there, or at least open up a divide in
Georgia, and flip the Senate potentially Democrat?
GRASSLEY: What he’s said up to now, no, but what he says on Saturday is
going to make a big difference.
CAVUTO: All right, Chuck Grassley talking about the back-and-forth in
Georgia, doesn’t think that anything the president’s done or said right now
will interfere in that race.
So, he will simply have to examine it. The president will, of course, be in
Georgia this weekend. We will be covering that live as well.
In the meantime, the fallout in these other battleground states, to which
the Trump campaign is giving a good deal of attention and will make its
case right now in Nevada as to how that state was taken out of a sure Trump
column because of a lot of the chicanery.
We’re going to be going into that in about 10, 15 minutes, when this
hearing, where the Trump folks will sort of lay out their legal argument
But ahead of that to Jeff Paul on what we could be looking.
Jeff is in Carson City, Nevada, with the latest.
JEFF PAUL, FOX NEWS CORRESPONDENT: Yes, Neil, a pretty big crowd gathering
here outside the courthouse in Carson City.
As you take a look behind me, you can see a lot of them either carrying
Trump flags or American flags and signs out here. You can see one that
says, “Stop the Steal.”
They’re out here trying to drum up support for the Trump team’s effort to
challenge the election, hoping a judge either declares Trump the winner in
Nevada or tosses out the election entirely.
Now, the Trump campaign says it does have evidence that the elections in
Nevada were illegitimate. They claim there were substantial irregularities,
improprieties and fraud.
One of the major issues, according to Republicans, deals with how Clark
County processed its mail-in ballots. They say the machines for — that
were used to verify signatures were problematic, and that the whole process
just wasn’t fair.
(BEGIN VIDEO CLIP)
JESSE BINNALL, TRUMP CAMPAIGN ATTORNEY: Donald Trump won the state of
Nevada, after you account for the fraud and irregularities that occurred in
We are asking the court to recognize the fact that President Trump was
victorious in this election.
(END VIDEO CLIP)
PAUL: And, on the other hand, Democrats say this is a desperate attempt by
the Trump team to overrule the will of the people, and they don’t believe
there’s really any hard evidence that would change a judge’s mind.
But that hearing will get under way here in about 15 minutes, and we will
see what happens — Neil.
CAVUTO: All right, Jeff, thank you very, very much.
Well, we have been waiting for quite some time. And the reason why we are
looking at this hearing so closely is because the Trump campaign says it
will have irrefutable proof to back up its views that the vote there was
fraudulent, that it was rigged and that many votes that meant to go to
Donald Trump instead never got there.
And, as a result, he lost the state. It is an argument that his campaign
has raised in some of these other battleground states. This is that rare
opportunity where we can hear from the campaign their proof of that and
whether it made a difference, not only in that state, but even nationally,
because they have been arguing that, when you look at all of this, without
it, Donald Trump would have been easily reelected, in fact, the president
has said by a landslide.
There’s no way to prove that. But we will be going to Nevada to get an idea
To the Ohio governor, who had said not too long ago that, even if there
were some malfeasance or crazy things going on, in the aggregate, it would
not change the overall vote. He had said it is clear that, certainly, based
on what we now know, that Joe Biden is the president-elect.
It was within minutes of hearing that that the president tweeted out a
suggestion that maybe Governor Mike DeWine of Ohio should be primaried.
Will he be? The governor has far bigger issues to deal with right now,
including a spike in cases.
How he’s handling that and what he makes of all of this — after this.
CAVUTO: All right, we’re continuing monitoring this press conference, a
virtual one, Governor Gavin Newsom of California, where they are reimposing
restrictions for at least the next three weeks in so-called hot zones,
where hospital capacity has gotten very, very low.
It’s a new metric used to justify curbing those crowding in public areas
and the rest. They are pretty sweeping measures. So, if a lot of California
is already upset with the strong arm of a very intrusive government —
that’s how many critics see this — others see the governor simply tried to
protect his folks — of course, that will likely be adding to this here.
But the crackdown there, while not a lockdown, will have rolling sort of
restrictions here that will no doubt roil the state, and at least for the
next three weeks to come.
A fellow who knows this process quite well, the governor of Ohio, Mike
DeWine, who, among other things, added his state itself to a travel warning
Governor DeWine, very good to have you.
GOV. MIKE DEWINE (R-OH): Neil, thank you.
CAVUTO: What is this travel restriction advice you’re giving right now?
DEWINE: Well, what we have always done is put a map up every Wednesday for
the people of Ohio and put the positivity rates of states across the
And 15 percent positivity is very high. And that’s a warning. And so what
we had to do today, to be consistent and honest, is to say Ohio is at 15
percent now. And so we want people — you know, it’s just one more caution.
It’s always been just a light that goes on and says, hey, if you’re going
to this state, be careful, because they have got a very high spread of the
Well, now we have a very high spread of the infection, and we have to tell
our own citizens that.
CAVUTO: It doesn’t go down well. It doesn’t even go down well with members
of your own party, Governor, several of whom have gathered to try to
impeach you, saying you’re going too far with these orders.
CAVUTO: What’s going on?
DEWINE: Well, there’s four members of the General Assembly.
There’s 132 members of the General Assembly, and four of them think that I
should be impeached. So, they have every right to think that. But I’m going
on about my business and focused on what we have to get done, both with
COVID-related, but also, frankly, in the other things.
We have a budget coming up and a lot of discussions. The state legislature
is in a lame-duck session now. And I’m working with Senator Obhof and
Speaker Cupp and — the two leaders, and we’re working things through.
CAVUTO: All of this occurs at a fractious political environment, as I’m
sure you’re aware, Governor.
While you had said not too long ago that the president was certainly well
within his right to get the count right and make sure it was right, that,
as you saw things back last time we chatted, it looked like Joe Biden was
going to emerge as the president of the United States on January 20 of next
Do you still subscribe to that?
DEWINE: Yes, both.
Look, I just listened to your account. I think it’s great any time — and
no one should be fearful of the president of the United States or anyone
going into court and putting forth evidence. He has every right to do that.
Our courts are great finders of fact. And they’re — the courts are open,
and people have absolutely every right to use them, including the president
of the United States.
I also said that it certainly — and this was a while ago — it certainly
appeared that Joe Biden was going to be the next president.
But, look, I have had a very great relationship with President Trump. I —
actually, I was talking to him last night about an Ohio-related matter that
didn’t have anything to do with the — with COVID.
And whenever I have asked him, I have called him, he has been there, done
everything that he could to help us through this virus. I think that the
good news, when I talk to the people of Ohio — we did a press conference
today, and we talked about, what’s the good news?
Well, the good news is, this vaccine is coming. And, you know, December 15,
we’re going to start doing it.
CAVUTO: Well, did the conversation ever veer into, Governor — all right,
but when you were talking to him last night…
CAVUTO: He had suggested maybe primarying you because of your comments that
it looked like…
DEWINE: No, we didn’t. Look…
CAVUTO: … Joe Biden was going to be the next president. Did that ever
DEWINE: We didn’t — we don’t — we didn’t get into that.
We talked about a challenge that we had in Ohio, something that I wanted
their help on. And the president said he would see what he could do. And he
always does that.
DEWINE: So, it’s — look, it’s important to have that relationship.
And I was proud to be his chairman in Ohio. And we won by about eight
CAVUTO: All right, yes, not too shabby there.
So, let me ask you a little, then, on this same issue, if you don’t mind,
Bill Barr had much similar things to say about this whole issue of
fraudulent and rigged elections, and has no doubt that maybe some of that
was going on, but, again, to your point, not to the degree that it would
have changed the outcome.
Apparently, the president, from all reports, bristled at that. There was
even some talk that he might fire, might still consider getting rid of the
What do you think of that? Do you think that that — that that would be
advisable, for the president to fire his attorney general?
DEWINE: Well, I remember something President Bush once said when I was in
front of him, and he had a member of his staff that was doing something and
talking about something.
And someone else, a member of Congress, I don’t know, he just — the
president said, you need to stay in your lane.
So, my lane is to focus on Ohio and to focus on this virus. And I don’t
know the facts that you’re recounting. And I have — frankly, I have been
focused the last few days on the — getting the vaccine.
And we’re — what I was about to say a minute ago was that this is a major
accomplishment of the Trump administration. And it’s coming. And it’s
coming, we think, around December 15.
DEWINE: And we’re going to be putting shots in people’s arms in Ohio, we
hope, the next day.
CAVUTO: All right.
DEWINE: Yes. So, we’re excited about it.
CAVUTO: Good for you.
DEWINE: And it’s — I think it’s a major — a major accomplishment of the
CAVUTO: Governor, before I leave you, we’re going to be going live to this
Nevada hearing, where this is really an opportunity for the Trump campaign
to outline exactly the abuses that it sees that cost it not only in that
state, that cost the president a win in that state, but in some of these
other battleground states.
Now, some have said that this battle will be only resolved when the
Electoral College meets in less than two weeks. The president has indicated
that, if that’s the point at which Joe Biden wins, whatever his grievances,
he will accept that. But others aren’t so sure.
Do you think that, when the Electoral College gathers and confirms and
certifies that Joe Biden has won, that it’s over, that the president should
be gracious, that he should attend the inauguration? What?
But, I mean, look, that’s what the president said. I mean, you just quoted
the president as saying that that’s what he would do. I take him at his
word that he will do that.
CAVUTO: Well, he didn’t say he would go to the inauguration or that he
would go happily…
CAVUTO: … would just say that that’s — that’s the point.
DEWINE: Well, look, we…
CAVUTO: You will leave it at that.
DEWINE: We have a great tradition. We have a great tradition in this
country for 200 years.
And people accept the result. We — the president has every right to go
into court. But, ultimately, when the result is there, the loser always
accepts it, and we move on. Doesn’t mean we like it.
DEWINE: But it’s accepted, because that’s part of who we are. That’s what
makes us different than a lot of places on Earth.
CAVUTO: All right, fair enough.
Governor DeWine, always classy, always a gentleman.
DEWINE: Thanks, Neil.
CAVUTO: The governor of the beautiful state of Ohio, ahead of dealing with
a lot of this and ahead of a lot of folks dealing with the aftermath of
As I promised you, I wanted to take you to Nevada, because, for the longest
time, we have been trying to ascertain the proof that the Trump campaign
has of some of these abuses that were so widespread and so distinct that
they cost it not only a victory in Nevada, but in many of these other
This is their opportunity on live Television to spell out that proof. We’re
going to Nevada for them to spell out that and to hear from all sides.
(JOINED IN PROGRESS)
UNIDENTIFIED MALE: … satisfying the requirements that might allow that to
There’s a matching between certain files produced by the Department of
Motor Vehicle and voter files, but even he admits that it’s only matched on
part of the name.
So, a single member of a household could be a non-U.S. citizen living with
several other U.S. citizens, and Mr. (INAUDIBLE) had no way of
distinguishing between any of them.
So, for all three reasons, Your Honor, I think the declaration,
supplemental declaration should be rejected by the court.
UNIDENTIFIED MALE: Mr. Binnall?
BINNALL: Thank you, Your Honor.
May it please the court, Jesse Binnall on behalf of the contestant.
The motion to strike should be denied for the reasons that we laid out in
our filings on this matter.
As to the specific positions just laid out by the defendants, I will also
start on the timeliness of the filing.
The — the information that this was based on that — Mr. Camsell’s (ph)
supplemental affidavit is — is based on, is data that was retrieved from
the Department of Motor Vehicles at about 2:00 p.m. on Monday, pursuant to
This is one of the few instances where it’s data that was discovered not by
extrajudicial discovery in our case, but actually using more of a formal
discovery process, because that’s the only way we could receive this
And as soon as we received this information, it was passed along to the
data scientists for comparison with the list of people who had voted. What
we, of course, learned then is that, approximately, it appears from the
expert report, about 4,000 non-citizens voting in this election, 4,000
additional people that are not authorized to vote in the 2020 election.
UNIDENTIFIED MALE: What about the court’s ruling and order that basically
all witnesses had to be disclosed by the contestants by 5:00 on November
BINNALL: Your Honor…
UNIDENTIFIED MALE: (OFF-MIKE) But is it fair to the defense then to
suddenly bring this in at the last minute?
BINNALL: You Honor, it was information that there’s no other way that we
could have gotten in. And there’s the — the idea that you only seasonally
supplement. And that’s exactly what we did in this case.
This litigation is especially truncated, and it has to be that way. And we
understand that. But data that there is no way for us to have had at that
deadline that the court set, that’s why the court has discretion in these
situation — these situations to say that, since there’s no possible way
that we could have had this information by November the 25th, there’s no
way that we could have produced this specific information.
We did tell them that Jesse Camsell was going to be a witness in this case.
And, indeed, he did give deposition testimony in this case. He gave
deposition testimony in this case on other data, information that came out
at — within I think about — well, at roughly the same exact time as this
information was produced to us by the Department of Motor Vehicles,
UNIDENTIFIED MALE: What about the requirements of NRS-293.415 that
basically this matter be heard upon deposition of (OFF-MIKE)? They have no
ability, basically, to have cross-examined him on this new additional
material, no ability at all to question his methods or methodology in
respect to (OFF-MIKE) material?
Is that fair?
BINNALL: Your Honor, I understand the court’s position on that.
And I would say that the better remedy that would meet the interests of
justice on this is to allow them to do just that after this — after
argument to allow them — we can do that tomorrow. We can do that this
evening. And then we can submit the deposition supplementally to the court
for its decision.
That would be something that could meet the interests of justice to still
allow them to cross-examine Mr. Camsell on these issues, without denying us
any reasonable means of bringing this to the court’s attention, since
there’s no other way that we could have gotten this and to submit it to
them any earlier.
We literally submitted this at the earliest moment we could have, in order
of getting the data, comparing the data, producing a very short report
explaining how the data was compared, and then providing it to the
They should have the ability, but they certainly have the resources
available in a document subpoena situation to use their own experts, their
own resources to compare this data and say if they think we got anything
wrong, that it’s fewer than 4,000 non-citizens who voted in this case.
They haven’t done that yet. They have had at this point a similar amount of
time that we have had to do this, and they haven’t done that. But if they
want the opportunity to depose Mr. Camsell on that, we will make him
available for a deposition, a very short deposition, after this.
We can submit it to the court supplemental without further argument.
UNIDENTIFIED MALE: Mr. Hamilton, any final comment on this issue?
UNIDENTIFIED MALE: Your Honor, the words out of my mouth, the statute
anticipates that evidence to be presented by deposition and argument of
That hasn’t happened here. This contest was filed on November 17. That’s
quite a while ago. And counsel had plenty of time to secure whatever data
he needed and to produce the declaration or expert testimony.
Your Honor gave a clear deadline. If there was some issue, then counsel
certainly could have filed an emergency motion for the court for leave or
even approached us for how to deal with that. He did neither.
The court has indulged counsel at every turn by providing ample opportunity
for discovery. But this is both inconsistent with the statute and
fundamentally unfair to the court and to the defendants.
So, we would ask that it be stricken.
UNIDENTIFIED MALE: Thank you.
Subject to the court, I’m going to go ahead and strike the (OFF-MIKE)
declaration (OFF-MIKE) I believe for the reasons that I clearly indicated
(OFF-MIKE) disclosure deadline of November 25, 2020, which, I might add,
none of the other experts by the claimants were even disclosed on that
They were all disclosed later (OFF-MIKE) the report (OFF-MIKE) November 30,
I believe with respect to that. But I’m going to allow all that.
I’m not striking anything other than this current declaration, for two
reasons primarily. (OFF-MIKE) primarily under NRS-293.415, it’s clear to
this court that I am basically limited to depositions in argument in
respect to making a determination in this case in regards to that.
And the reason for that, certainly in the court’s mind, is an ability to
cross-examine and verify the information and make sure that, basically,
it’s fair to both sides.
So, with that in mind, I want to move forward with respect to that. It’s my
intent to give each side approximately an hour. We may take a break
somewhere along the way in respect to the matter in regards to that.
You can reserve part of your time for rebuttal, if you decide. But you have
an hour. So, if you want to go 30 minutes and reserve your time, that’s
fine with the court. However you want to do it with respect to that is
I do have one other question that the court thinks is important to start
with. And that is, what is the evidentiary standard that applies with
respect to this (OFF-MIKE). I think it’s important that we go through the
evidence and look at the evidence having an understanding what the standard
is that we’re going to apply.
Is it a clear and convincing standard, or is it a reasonable doubt
standard? So (OFF-MIKE) do you want to comment on that? Again (OFF-MIKE) I
have read all the briefs. And that’s — I’m not making a decision which
way. I just kind of wanted to get a flavor for everybody (OFF-MIKE) courts
are going to look at.
BINNALL: And I understand that that would be an important point for the
court to consider, is, because there — the statute itself is silent on the
standard of proof that would be required in a case like this.
The defendants have cited law in other jurisdictions. But, of course, since
this is a creature, a statute in Nevada, it would be more appropriate to
look at what — how Nevada handles situations like this.
The default is always in a civil case preponderance of the evidence. That
is — that is the default burden in a civil case. And this is a civil case.
It’s an unusual case. And it’s understandable why there wouldn’t be a lot
of case law defining some of this.
But short of any — any intent of the legislature — and we’re aware of no
other intention of the legislature to increase the burden of proof to a
clear and convincing standard, as the defendants urge the court to do.
The right thing to do is going back to the civil standard that we’re very
familiar with, which is preponderance of the evidence. From a policy
perspective, that’s the right answer too.
We’re trying, as the court said when the court took the bench, to determine
whether every vote was properly counted, every legal vote was counted in an
election like this. There is no reason to give more deference to one side
or the other in that determination.
The proper thing to do is to weigh the evidence to see whether or not the
decision to certify the electors for Vice President Biden was appropriate.
And so, consequently, since there’s no reason to favor the defendants more
or the contestants more, the preponderance of evidence standard is the
appropriate use here.
UNIDENTIFIED MALE: What about NRS-293.410, which talks about reasonable
doubt? (OFF-MIKE) reasonable doubt (OFF-MIKE) talks about reasonable doubt.
Is that similar to preponderance of evidence or that is a higher standard?
BINNALL: And that’s an interesting use of reasonable doubt in that statute,
because it’s not the reasonable doubt, very clearly, that we would be used
to in a criminal case.
It could be read to say that, if there’s — that the — it could be read to
offer a standard much more favorable to the contestants, quite honestly, of
saying that, if there’s a reasonable doubt in the outcome, that the contest
should be granted.
It’s difficult to see exactly how that would work in this setting, Your
Honor. And that’s why I think it’s more appropriate for me and, quite
honestly, hopefully, it gives me a little bit more credibility to you to
say I don’t have to just throw up as a — as somebody sitting on this side
of the courtroom who has a burden, some burden, that I just have to have
almost like a probable cause-type standard.
I think it does have to be more than that. It has to be that we do have a
burden to meet here, a burden that we will meet, that we’re very common we
will meet. And I think the way a reasonable reading of the reasonable doubt
language in 210 means that it’s similar to the preponderance of the
evidence standard that otherwise the court would use in this setting.
UNIDENTIFIED MALE: Mr. Hamilton?
UNIDENTIFIED MALE: Your Honor, I agree with — I agree with counsel.
(INAUDIBLE) the Supreme Court has not yet defined clearly the burden of
proof required in an election contest.
But an election contest, by its nature, is asking a court to do an
extraordinary thing, which is overturn the results of a certified election.
And so, for that reason, courts around the country typically embrace a
clear and convincing evidence standard, California, Illinois, Kentucky,
Maryland, Montana, Ohio, Oregon, a variety of states. We have cited them
all in the brief.
So, it has — obviously, the statute set a standard that will be the
standard that will apply. It was a Nevada court that spoke it. And that
would be, obviously, controlling. Here, we don’t have that. So we have to
look — I submit that two things guide the standard.
First would be, how are election contests treated elsewhere on similar
statutory schemes? And that is the use of higher clear and convincing
Second would be more of a functional approach. The cause of action sounds,
at least in part, in fraud. And fraud, under Nevada and the law of
virtually every state, requires a higher evidentiary standard.
So, for both reasons, I think that the clear and convincing evidence
standard is the one that should be applied by the court here.
Ultimately — and (INAUDIBLE) ultimately, I’m not sure that it’s
dispositive here, because I think the claim fails under even a more relaxed
preponderance of the evidence or reasonable doubt standard, Your Honor.
UNIDENTIFIED MALE: I would reserve ruling on that issue. I think it’s kind
of a difficult issue in regards to this. And it may or may not make much
difference when we get down to the ruling.
The other question I have is, there was a certification of the election
results by the Nevada Supreme Court. Does that have any impact on this
And, again, if you look at the statutes and the timetables that things have
to be done under Nevada law, and you do have time periods in which to file
a contest, and it was filed properly within the time period, so I’m not by
sure it technically has any impact.
So, just a final comment.
BINNALL: Your Honor, that I think that’s a very good question and something
that we looked at.
UNIDENTIFIED MALE: I always like to hear that I asked a very good question.
BINNALL: It’s a good question from the very nature of the fact it came from
the bench, I know.
BINNALL: Your Honor, the contest statute and — is, I think, quite clear
about the timing and the fact that the ministerial action of certification
by the secretary of state and then the governor does not — does not take
away the court’s ability to enter an order on a contest.
Of course, just by the timing that the General Assembly has laid out on
that, I think is very clear.
The — and, up until — matter of fact, the law actually is that you can
see from the legislative history on the contest statute that it is
anticipated that the timing has to be so truncated because no one is able
to take the oath of their position until the contest is decided.
And so that is the important time frame to look at for the contest
position, is to actually go down in the legislative history. If we haven’t
cited that, I can — we can get that and provide that to the court, that
the important thing is whether they have taken their oath to actually then
begin their terms.
And they can’t take those oath until the contest is actually decided. And
so that would be separate and apart from the certification process by the
secretary of state. Otherwise, the timing laid out the legislature just
would be impossible for there being an election contest at all.
It would render the entire statute (INAUDIBLE)
UNIDENTIFIED MALE: Mr. Hamilton?
UNIDENTIFIED MALE: Your Honor, I think Nevada law speaks to that in NRS
(INAUDIBLE) sub 4.
Whenever an election is annulled or set aside by a court, and the court has
not declared some candidate elected (INAUDIBLE) election (INAUDIBLE)
commission, if any has been issued, is void (INAUDIBLE)
So, I think, without having spent a lot of time thinking about it, that the
action by the Nevada Supreme Court does not prevent the act — this matter
from going forward to a judgment.
UNIDENTIFIED MALE: Thank you. I agree — I agree with both of you.
Thank you for your (OFF-MIKE)
So, at this time, basically, the court is prepared to go ahead.
Mr. Binnall, if you want to start with the argument. Again, we’re kind of
limiting everybody to time (OFF-MIKE)
And I want you to know that I have read all the briefs (OFF-MIKE). And I
read as much of that as I possibly could from 5:00 until noon today in
respect to that. And there’s a significant amount of papers there.
But I concentrated primarily on (OFF-MIKE) I read primarily the depositions
of the experts in regards to this particular matter. So, that — I did
spend a good deal of time going through that (OFF-MIKE) most important
places to start (OFF-MIKE)
BINNALL: And, Your Honor, we understand that there’s a substantial amount
of submissions in this case, and very truncated position to get it all
forward for the court.
I’m — I was reminded of the old adage that, if I had more time, it would
have been shorter. In this case, we think almost everything that we have
given to the court is something that is important for the resolution of
It is all critical information that we have been able to gather in a month.
And we appreciate the court’s consideration of that and taking up all the
time that the court has in looking at everything.
We are actually — also just put together something this morning, but that
we thought might be helpful. And that is an additional exhibit index that
gives the particular exhibit and which binder it’s in for our binders.
Can we hand that up to the court?
UNIDENTIFIED MALE: Absolutely.
UNIDENTIFIED MALE: I would like to have it. Thank you very much.
BINNALL: Thank you.
And we will make sure that we get one of those to opposing counsel promptly
as well, if it hasn’t already.
And, Your Honor, I’m going to go for about 35 minutes right now. And then
I’m going to withhold the rest of my time for rebuttal, if I can do math.
Your Honor, this case is about the failure of the electoral system in an
election. And no one ever wants to say that, but it’s true. The evidence
The questions are, how did this happen, who’s responsible, and what do we
do about it?
Our free, fair and open elections are a source of national pride. We spend
untold millions of dollars around the world preaching the benefits of
We make sure that elections are decided by the people who vote in them, and
not by outside actors trying to influence the results, voters who are the
ones that are legally able to cast those votes and the importance that
every voter gets only one vote.
The evidence that we have submitted is compelling. It shows that election
officials planned and implemented an election system that would be highly
susceptible to fraud, that would ignore the best practices developed over
the years, and eschew meaningful observation.
This was made worse, as Mr. Gessler’s expert testimony makes clear, by the
legislature’s decision to adopt (INAUDIBLE) and take us to a system of
universal mail voting at very much the last minute, without a sufficient
amount of time to clean the voter rolls and implement a plan to ensure
UNIDENTIFIED MALE: Let me ask you about that.
UNIDENTIFIED MALE: That’s the — basically, the (OFF-MIKE) counting machine
that (OFF-MIKE) in respect to the ballots? Is that correct?
BINNALL: Are you talking about the Agilis machine in Clark County?
BINNALL: Yes, Your Honor.
UNIDENTIFIED MALE: And wasn’t that issue determined issued by Judge Wilson
(ph) in the (OFF-MIKE) case and the other cases that have been filed
throughout the state of Nevada?
And I’m raising that because (OFF-MIKE) raising an issue of collusion. And
we’re going to get to that at some point in time (OFF-MIKE). Is that
something I should even consider?
BINNALL: Your Honor, I think the clearest answer, and the reason why the
answer is no, is that Judge Wilson decided that there wasn’t standing to
bring that challenge.
And anything decided without standing is a nullity and can’t have
(INAUDIBLE) effect. There were other reasons for his decision. But because
— since we would be looking — well, regardless if we’d be looking at
issue preclusion or claim preclusion, the lack of standing would be
dispositive on that particular issue.
You also do have the facts that the parties are different between the two
contests. And so, for res judicata purposes, that would have an effect.
And one of the — the reason that standing was so important and why you
wouldn’t have a res judicata or collateral estoppel issue come up here is
because, essentially, the argument was wasn’t ripe yet. We didn’t know at
that point if it was going to be a problem.
And so you can’t really say on one hand, well, we don’t know if this is a
problem yet because it happened pre-election, and so the election actually
comes, we see it is a problem, and then say, well, it’s already decided,
when we said it wasn’t ripe.
That kind of reasoning doesn’t really work for a preclusion narrative.
So, the primary issue that we’re going to see with the use of the Agilis
machinery here is one that’s purely statutory, the — as far as the legal
problem. And then what flows from that is going to be the evidentiary
problems, which there’s not going to be the conclusive issues on the
evidentiary problems, because even if the Agilis machine had already been
determined to be legal by Judge Wilson’s previous ruling, the issues at
play is whether the authenticated signatures, whether they were
authenticated by a human or by a machine, whether they were properly
authenticated, whether they let through fraudulent votes.
And we do have evidence that we have submitted to the court that says that
the answer that we have been able to determine, without really any use of
civil discovery, and certainly not what you would normally get in a fraud
investigation of this sort, is that, yes, the signature verification
system, machine, human, whatever, let through bad votes.
So, the statutory issue is going to break down — and I don’t want to —
well, we’re there, so I’m just going to address it, if it is easier for the
The statutory issue is that, even in AB4, which was, of course, just passed
this past summer by the legislature, it decided — it required that
signatures be verified by the clerk or the clerk’s employee.
Clark County is a little bit different, because there’s a county statute
that specifically says that the role of the clerk is assigned to the
registrar when it comes to election matters.
And so that statute, for Clark County purposes, which is the only places
that uses this Agilis machine.
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