Election Litigation Status

[Res Ipsa]

Actually, Cam, I read live tweeting of Rudy’s argument. It was about that bad. He didn’t know the facts of the case. He didn’t know the law. He kept yammering on about massive fraud even through the lawsuit doesn’t allege fraud. He kept ranting evidence that wasn’t before the court. He kept trying to hand things to the judge, which was a no no. Then he tried to have documents entered as exhibits (not appropriate at a hearing on a motion to dismiss). He concluded with something like: IT’S A CASE! IT’S A CONTROVERSY! (not an issue in the case).

The transcript is going to be painful to read.

Meanwhile, at the start of the hearing, the judge confirmed that only two cases of action remained after the complaint was amended: equal protection and the constitutional provision delegating election laws to the state legislatures. Before argument started, he dismissed the latter based on the 3rd Circuit’s opinion on Friday.

So, only one claim left in the PA kitchen sink lawsuit. We’ll see if the judge sought to rule from the bench.

In other developments, the two lawyers that appeared to replace the firm that withdrew filed a motion to withdraw only four hours later. The judge had granted the first firm’s motion to withdraw but has not granted the motion for the replacement lawyers. He said he has some questions for them.

But the biggest news in PA today comes from the state Supreme Court, which overruled an intermediate court which had held that people observing the count had to be allowed to get closer to the counting. It upheld the original distance used by the elections board complied with the relevant state statutes.

As of this morning, Trump and the GOP had won on only two minor issues in the blizzard of cases they have filed. This was one of them, which has now been reversed.

So now Trump has prevailed on one issue: a ruling that defective mail in ballots in PA received after the day of the election but before the Deadline set by the PA Supreme Court are invalid. It’s a few hundred ballots and I’m not sure that the motion was opposed.

That’s it, while we wait to hear what the judge thinks of Rudy‘s whatever it was.

ETA: As the Trump campaign never filed an actual response to the motion to dismiss, the Judge has set a deadline of 5:00pm for them to do so. The moving parties can file a reply brief Thursday.

Based on the argument summaries and the types of questions asked by the judge, he’s decided to dismiss. He knows the Trump campaign to appeal, and he wants a full set of briefs in the record before the case goes to the 3rd Circuit. He doesn’t want anyone saying that they didn’t have a chance to file a brief.

The lowlight of the argument:

Judge: What standard of review should apply.

Rudy: The normal one.

Judge: Are you arguing for strict scrutiny?

Rudy: The normal one.

There is no “normal” standard of review. There are three: rational basis, intermediate scrutiny, and strict scrutiny. Constitutional law cases are won and lost by persuading the judge to use the standard of review that is best for your client. This is like a surgeon not knowing what a scalpel is. It’s that bad.

Rudy’s performance was, from a legal perspective, utterly incompetent.

[Doctor CamNC4Me]

Great analysis, RI.

- Doc

[Res Ipsa]

Great analysis, RI.

- Doc

Thanks. Personally, I think Rudy is senile to the point that he can’t meet minimal competency required by our ethics code.

[Doctor CamNC4Me]

At times, Giuliani even seemed unfamiliar with the campaign’s legal filings: in the midst of reading the word “opacity” from the Trump camp’s complaints, he admitted he did not know what it meant.

“It’s a big word, your honor,” Giuliani said.

Giuliani confessed to Brann under questioning that the campaign’s complaint presented no specific evidence of fraud.

I think Rudy owes a lot of people a lot of money, and this is clearly a desperate man acting out of self-preservation. I hope to see the piper gets paid with that one.

- Doc

[Jersey Girl]

At times, Giuliani even seemed unfamiliar with the campaign’s legal filings: in the midst of reading the word “opacity” from the Trump camp’s complaints, he admitted he did not know what it meant.

“It’s a big word, your honor,” Giuliani said.

Giuliani confessed to Brann under questioning that the campaign’s complaint presented no specific evidence of fraud.

I think Rudy owes a lot of people a lot of money, and this is clearly a desperate man acting out of self-preservation. I hope to see the piper gets paid with that one.

- Doc

Ummm...maybe Rudy is the one who should be drawing the clock face.

[Gunnar]

Why isn't Giuliani disbarred yet?

[Jersey Girl]

Why isn't Giuliani disbarred yet?

Why hasn't Trump been Baker Acted yet? Rhetorical question there...

You know...if I am not mistaken, Giuliani was once well respected. He should have quit while he was ahead and not tried to remain relevant.

Nah, he'll kamikaze his way through it all until he finally crashes.

[Res Ipsa]

Why isn't Giuliani disbarred yet?

Bar investigations start with bar complaints, usually from clients or judges. I don’t think Rudy has actually practiced much real law in a while, and this was his first federal court appearance in something like 30 years. So, no one with reason to file a bar complaint.

[Res Ipsa]

Why isn't Giuliani disbarred yet?

Why hasn't Trump been Baker Acted yet? Rhetorical question there...

You know...if I am not mistaken, Giuliani was once well respected. He should have quit while he was ahead and not tried to remain relevant.

Nah, he'll kamikaze his way through it all until he finally crashes.

My recollection is that he was an excellent prosecutor, putting monsters in jail. His political career was pretty rocky.

[Gunnar]

Why isn't Giuliani disbarred yet?

Bar investigations start with bar complaints, usually from clients or judges. I don’t think Rudy has actually practiced much real law in a while, and this was his first federal court appearance in something like 30 years. So, no one with reason to file a bar complaint.

In your opinion, do you think he is in danger of eventual disbarment if he continues on his current path?