With Donald Trump’s post-election legal challenges in disarray, yesterday the President’s personal lawyer, Rudy Giuliani, took matters into his own hands.
Giuliani made a last-minute request to appear on the Trump campaign’s behalf in a pivotal lawsuit in Pennsylvania.
In a nutshell, the case concerns mail-in ballots, and how different counties across the state dealt with them.
The big Democratic-leaning counties, such as those encompassing Philadelphia and Pittsburgh, gave voters a chance to “cure” problems with their ballots. For example, if a ballot did not arrive in the correct envelope, the voter was notified.
Counties in Republican-leaning areas did not give voters that chance. The Trump campaign argues that “disenfranchised” people who were more likely to support the President.
Two of its co-plaintiffs are Pennsylvanians whose ballots were not counted, because the counties in which they voted did not notify them about technical problems.
The campaign is mounting this argument in an attempt to stop the state from certifying its election results.
You might wonder why Pennsylvania matters so much. Of the states in which Trump has launched legal action, it has the highest number of electoral votes, with 20. That makes it an essential piece of his strategy.
If the President fails to overcome Joe Biden’s 70,000-vote lead there, his hopes of overturning the broader election result – something most legal experts already think is impossible – will fade even more.
Hence Giuliani’s intense interest in this particular lawsuit.
These days, Giuliani is mostly known for his politics. He was once a popular mayor of New York City, and is among Trump’s most enthusiastic defenders in the media.
Decades ago, however, he was an accomplished prosecutor. Yesterday, in his first federal court appearance since 1992, Giuliani tried to put his old rhetorical skills to use.
In his opening argument, he echoed many of the President’s frequent claims about widespread voter fraud, for which the campaign has still failed to produce any evidence.
“The best description of this situation is widespread, nationwide voter fraud, of which this is a part,” Giuliani told Judge Matthew Brann.
“This is not an isolated case. This is a case that is repeated in at least 10 other jurisdictions.
“If this is allowed without serious sanctions, this will become an epidemic.
“It just all happened to be in big cities controlled by Democrats.
“You’d have to be a fool to think this was an accident.”
Giuliani said the Democrats “stole the election”, and alleged there had been 1.5 million illegal votes. He did not explain how he arrived at that number.
The first problem here is that the Trump campaign’s lawsuit in Pennsylvania does not actually contain allegations of voter fraud.
“This is not a fraud case,” Giuliani admitted later under questioning from Judge Brann.
The lawsuit does contain claims that Republican poll watchers were not allowed to properly observe about 680,000 ballots being counted in Philadelphia. It argues that may have allowed fraud to occur.
In its original complaint, the campaign pushed for those 680,000 ballots to be invalidated, but that request was removed as part of an amended filing on Sunday.
The new version of the complaint did not ask for any legal recourse at all in response to the issue with observers, and instead narrowed its focus to the stuff I mentioned earlier about the curing of ballots.
Incidentally, while Giuliani was in court yesterday, Pennsylvania’s Supreme Court ruled, by a 5-2 majority, that Philadelphia election officials did give Republican observers sufficient access to the vote count.
Nevertheless, the subject featured prominently in Giuliani’s arguments.
“As far as we’re concerned, those ballots could be from Mickey Mouse,” he said at one point.
“Counsel on the side of the aisle focused on allegations that aren’t in the complaint,” one of the opposing lawyers, Daniel Donovan, said during his own argument.
Judge Brann told Giuliani the campaign would need to file a motion to amend its complaint again and reinsert some of the stuff it took out a few days ago.
“You should write this down. That’s what lawyers do. They write things down,” he quipped.
In any case, Judge Brann’s questions did not give the impression that he was sympathetic to Giuliani’s argument.
“You’re asking this court to invalidate more than 6.8 million votes (i.e. every vote in Pennsylvania), thereby disenfranchising every single voter in the commonwealth. Can you tell me how this result can possibly be justified?” he asked.
Giuliani replied that the conduct of election officials was “egregious”, and that’s why a remedy as “draconian” as stopping the entire state from certifying its results was necessary.
Another of the opposing lawyers, Mark Aronchick, was incensed.
“The idea that you’re being asked to do that – I don’t use this word very much. It is disgraceful,” he told the judge.
Giuliani did also cover the substance of the actual lawsuit before the court, arguing the two co-plaintiffs I mentioned earlier had “lost their right to vote”.
The men in question are from Fayette and Lancaster counties, both of which voted for the President. Instead of suing those two counties for failing to let voters cure their ballots, the campaign is suing the Democratic-leaning counties that did, because that’s where the bulk of Biden’s support came from.
This fact did not escape Judge Brann’s notice.
“In the amended complaint, you said your clients tried to vote in Lancaster and Fayette county. So why didn’t you just sue the counties that are responsible for your clients’ injuries?” he asked.
Giuliani’s co-counsel, Linda Kerns, said it was a federal issue and the election result could have been “very, very different” if all counties had treated mail-in ballots the same way.
Again, the judge’s questions did not exude sympathy for the Trump campaign’s position.
“How does making it easy for some people to vote burden the plaintiffs’ right to vote?” Judge Brann asked.
When it was all over, he said he’d give both sides a few more days to file more arguments before ruling, and proceeded to give the lawyers some friendly dinner recommendations.
It’s fair to say different observers had differing opinions on how Giuliani’s court appearance went. The Trump campaign’s senior legal adviser Jenna Ellis, for example, was impressed.
Others, less so. Among the legal experts criticising Giuliani’s performance was law professor Rick Hasen.
“I spent the whole afternoon listening to that hearing, and it was an embarrassment. That was probably the worst lawyering I have ever heard from a lawyer arguing an election case in my life,” Hasen told CNN.
He mocked Giuliani for butchering legal terms under Judge Brann’s questioning.
“At one point the judge was asking kind of a basic election question, which was, ‘Do I judge this under strict scrutiny or rational basis?’ Which is kind of a Law 101 question, and Rudy Giuliani didn’t seem to know what those terms meant,” he said.
I’ll freely admit I don’t know what those terms mean either, so I guess I’ll take the expert’s word for it here.
MSNBC’s chief legal correspondent, lawyer Ari Melber, was similarly scathing.
“Those kind of false claims fare worse in court than on Twitter,” Melber said of Giuliani’s rhetoric about voter fraud.
“We are now witnessing the last embers of the dumpster fire that is the Trump 2020 legal strategy. I say dumpster fire because the legal claims have been, largely, trash. Which is why judges have thrown them out.
“And I say fire because as other lawyers leave this project, we have been left with the hot mess that is Rudy Giuliani, now taking a larger role.”
There was mockery from legal experts online as well. Here’s a sample.
Finally, Giuliani also copped some criticism from one of Trump’s political allies, former acting White House chief of staff Mick Mulvaney.
“I’m still a little concerned about the use of Rudy Giuliani,” Mulvaney told Fox Business. “It strikes me that this is the most important lawsuit in the history of the country, and they’re not using the most well noted election lawyers. There are folks who do this all of the time. This is a specialty.
“This is not a television program. This is the real thing.
“On one hand, I think it needs to go forward. It absolutely does. I just wish it was being prosecuted a little more efficiently.”
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