How right-wing media is legitimizing a nonsensical and nonexistent lawsuit Judd Legum

This is a special joint edition of Popular Information and Aaron Rupar’s Public Notice. You can subscribe to Public Notice here.

On June 20, Missouri Attorney General Andrew Bailey announced on X that he was filing a lawsuit against the State of New York. According to Bailey, when a New York jury convicted Donald Trump of 34 felonies, it was a “direct attack on our democratic process through unconstitutional lawfare” that “sabotage[d] Missourians’ right to a free and fair election.”

In one sense, this announcement has already been a success for Bailey. The governor of Missouri appointed him as Attorney General in 2023. Today, Bailey is in the middle of a campaign for a full term. In August, Bailey will face Will Scharf, a member of Trump’s legal team, in the Republican primary. Specifically, Scharf is part of the team handling appellate matters for the former president. 

Since the announcement, Bailey has been a frequent guest on conservative media outlets — including Fox News and Newsmax — to talk about his decision to sue New York. It positions Bailey, not Scharf, as the most aggressive legal defender of Trump. “Radical progressives in New York are trying to rig the 2024 election,” Bailey told Fox News. “We have to stand up and fight back.”

And yet, nearly a week after Bailey’s announcement, the lawsuit still does not exist. Presumably, Bailey will eventually file something, but it will be difficult to construct a complaint that has any credibility. 

In the United States, in order to have standing as a plaintiff in a lawsuit, you must have an “injury in fact.” In other words, it is not enough to allege that something illegal occurred. The lawsuit must show that the plaintiff was actually harmed. 

How was Missouri harmed by the criminal charges filed against Trump in New York? Bailey has struggled to come up with a convincing answer. 

In an appearance on The Benny Show, an online program hosted by right-wing polemicist Benny Johnson, Bailey said that “Missouri has a sovereign interest in participating on equal footing with other states in a national presidential election.” Bailey then said New York, by prosecuting Trump, is “taking a presidential candidate off the campaign trail.” This, according to Bailey, violates the First Amendment rights of Missourians to “hear from their preferred candidate.”

Of course, Trump’s criminal prosecution has not prevented him from campaigning, except on days when he was required to be in court. So, the alleged constitutional violation appears to be that the trial prevented Trump from campaigning in Missouri every day. Trump has held numerous events before, during, and after the trial. He just chose not to go to Missouri. Trump has not held a campaign event in Missouri since September 2018. Clearly, his absence from Missouri this year has little to do with New York’s criminal prosecution.

Bailey also claimed that after Trump’s sentencing on July 11, “onerous” provisions, including jail time, house arrest, or community service, will further impact his ability to campaign in Missouri. Criminal convictions, of course, do result in some inconveniences for the guilty. But being punished for a crime is not a constitutional violation. The reality is that any sentence will likely be stayed pending Trump’s appeal, which will not be resolved until long after the election. It is unlikely that Trump will visit Missouri before election day, but that will be his choice. 

Finally, Bailey is promoting his theoretical lawsuit by promising that it will be adjudicated by the Supreme Court. Bailey is correct that the Supreme Court does have original jurisdiction over disputes between states, but it is not required to exercise its jurisdiction. Bailey acknowledged that his attempt to access the Supreme Court this way is unprecedented. Previous cases between states considered by the Supreme Court, Bailey admitted, were “about boundaries and water rights.”

Bailey also uses his media appearances to claim that Trump’s New York trial had constitutional and procedural issues. On Newsmax, Bailey compared Trump with Abraham Lincoln, saying, “Look, no one would’ve tolerated it if 1860, a rogue DA in South Carolina had prosecuted Lincoln for speaking out on abolition issues and taken him off the campaign trail.” Trump, however, was convicted of illegally falsifying business records to cover up hush money payments in the closing days of a presidential election. This bears little resemblance to speaking out against slavery.

Even if one assumes all of Bailey’s claims were true, Trump is the party that was harmed. And Bailey’s opponent is assisting Trump’s appeal. 

During his Fox News appearance, Bailey didn’t try to conceal what his threatened lawsuit is really all about. “It’s time to prosecute the prosecutors,” Bailey said, echoing a frequent Trump talking point.

Sinclair promotes and mischaracterizes Bailey’s lawsuit

Despite the clear problems with Bailey’s promised lawsuit, conservative media sprung to action to legitimize it. In particular, Bailey’s lawsuit against New York is a fresh demonstration of how Sinclair Broadcast Group uses its network of affiliates to inject right-wing propaganda into local news telecasts and websites.

Bailey’s tweet announcing his intention to file a lawsuit was covered last Friday by Sinclair’s National Desk. The piece, authored by Jackson Walker, is short and shoddy. The only person quoted other than Bailey is conservative culture warrior Riley Gaines, a former collegiate swimmer who has no legal bona fides and is best known for pushing transphobia during her regular Fox News appearances.

Nevertheless, Walker’s piece was pushed from The National Desk to the websites of dozens of Sinclair affiliates across the country, where it was given the imprimatur of mainstream media brands like NBC, ABC, and CBS.

Then, on Tuesday, a misleading news brief about Bailey’s threatened lawsuit was included in The National Desk’s syndicated morning show, where it was broadcast in more than 70 local markets all across the country.

“Missouri suing New York over its prosecution against former President Trump,” anchor Jan Jeffcoat began, falsely claiming that Bailey’s lawsuit is going “straight to the Supreme Court.”

Jeffcoat did not mention that the lawsuit has not been filed or that the Supreme Court is under no obligation to hear the case

The Bailey formula for MAGA stardom

Even though he’s still never won an election, Bailey is a rising MAGA star. Since being appointed to office in January of last year, Bailey has become a fixture on right-wing TV, and he has proven to be especially skilled at using X to advance his brand of reactionary politics.

Late last year, Bailey announced on X his intention to sue Media Matters for America after Media Matters reported that X was displaying ads for prominent brands next to neo-Nazi content. Bailey filed the suit at the urging of Elon Musk and Trump adviser Stephen Miller. 

This year, based on a deceptive Project Veritas video, Bailey announced on X his plan to file a lawsuit against Planned Parenthood that he said was aimed at driving Planned Parenthood out of Missouri.

In both instances, Bailey’s lawsuits ended up being remarkably flimsy. But the merits are beside the point. Bailey’s tweets spread like wildfire within MAGA circles on social media, and then became big topics of conversation on Fox News, Newsmax, and other right-wing outlets. These legal stunts shaped news cycles and raised Bailey’s profile as a national MAGA leader.