In the moments after President Donald Trump falsely declared premature victory early Wednesday morning, news anchors across the board—including Fox News’ Chris Wallace—denounced his comments as “undemocratic” and potentially dangerous.
Now, as Biden’s lead in the battleground states of Michigan and Wisconsin grows, a pair of Fox News legal commentators are arguing that Trump should “tamp down” his rhetoric for a very different reason.
First up was Jonathan Turley, a George Washington University law professor who actually served as a witness for Trump during his impeachment trial late last year. After lending some credence to the legal challenges that the Trump administration has been threatening, Turley pushed back against the president’s claims that he has somehow already won the election.
“He’s got to tamp down the rhetoric,” Turley told Fox anchor Sandra Smith. “That’s only going to alienate courts, it’s going to inflame people on both sides. He did not win these states last night. These states are still in play. There are ballots that will be counted.”
While Trump could still win the election and may even have “legitimate objections” in some cases, Turley added, “We all have to take a step back here. We have an interest in counting valid ballots, including ones that have not been counted to date. That’s going to go forward.”
Later, Turley was joined on air by another Trump-friendly legal expert in former assistant U.S. attorney and frequent Fox News presence Andrew McCarthy. He said he would have expected Trump’s Election Night statement to be “properly lawyered” but “it seemed like they didn’t do that, and I think it was a real mistake not to.”
“Because there’s a preliminary issue here,” he continued, “which is that the Supreme Court is the master of its own docket. It doesn’t have to take cases.” Even before the election was “as thermonuclear as it is at the moment,” McCarthy said the Supreme Court “did not want any part of this case.”
“And I believe that what the president said last night is going to play into the hands of the faction of the Court that would rather say, ‘Let’s sit back and let this play out and it may turn out that when all the dust settles, maybe we don’t have to make a ruling here.’” he added.