Inside Trump’s Pennsylvania Face Plant

10 mins read

Twitter had a lot of questions about this, so I assume you all do, too. 

Warning: After reading this post, you may know more about civil and appellate procedure than you ever wanted to know.

First, to recap. On Tuesday, Rudy Giuliani made one of the more unhinged arguments I’ve ever listened to. (The court’s dial-in numbers was published, and 4,000 people were able to listen.)

First, to recap. On Tuesday, Rudy Giuliani made one of the more unhinged arguments I’ve ever listened to. (The court’s dial-in numbers was published, and 4,000 people were able to listen.)The defendants argued that Trump’s appeal should be tossed out of court because it was so deficient. Rudy was trying to persuade the judge not to throw the case out.

It’s usually hard to win on a motion to dismiss because courts prefer to see the evidence and decide on the merits. To win on a motion to dismiss, the lawsuit as filed has to be so fatally defective so that there is no point having a trial or hearing. For example, suppose I sue you on the claim that you are ugly and therefore you owe me $1 million dollars. The problem in legal terms I have not stated a cause of action which would entitle me to relief. 

😂 Well, even if I do prove my case (and the jury agrees that you’re ugly) I get nothing, so there’s no point going to trial. Dismiss the case now.

Ordinarily, it’s hard to win on a motion to dismiss because courts liberally construe the complaints. All you have to do is allege anything that entitles you to relief, and you get to move forward. 

Sometimes the lawsuit as filed has errors that can be easily fixed, unlike my ‘you’re ugly’ example. In such a case, the court dismisses without prejudice, which means the plaintiffs can fix the errors and file again. As a strategic matter, if the lawsuit (complaint) has defects that can be fixed easily, defendants may not file a motion to dismiss because that just allows the plaintiffs to clean up the complaint and strengthen it. On rare occasions, a complaint is so frivolous that there’s no way to fix it, in which case the judge dismisses with prejudice, which basically says, “Go away and don’t come back with this stupid frivolous complaint.” 

At the hearing on the motion to dismiss, Giuliani made sweeping arguments about how mail-in ballots were a nationwide problem, and Pennsylvania was only part of the problem. He called mail-in voting a “new form of voting,” and rambled about how it’s “widely known” to be riddled with fraud. 

He also said that all the problems are in big cities controlled by Democrats. He said it’s well known that these big Democratic cities are also run by political “machines.”

He didn’t, however, argue fraud. He argued that some counties (like Philadelphia) took steps to give voters a chance to fix errors with their ballots (ballots in the wrong envelope, not dated, or whatever) but other counties did not.

He had two plaintiffs who lived in a county where nobody reached out to them to help them fix their errors, so their ballots were rejected. 

He basically made an “equal protection” argument: some voters (in Democratic cities) were given more chances to fix errors, others in Republican areas were not, so it wasn’t fair. 

The question (which he never addressed) is why the other counties didn’t offer the chance to fix the errors.

The problem here is remedy: What Giuliani is asking for is for the election in Pennsylvania not to be certified, which would mean disenfranchising every voter in the state. 

He said 1.5 million ballots were illegal. I can’t figure if he’s saying that 1.5 million people were allowed to fix ballots, or if he’s arguing that all mail-in ballots be tossed. 

At that point, I was cut off and couldn’t hear any more.

Then, yesterday, the federal judge dismissed the lawsuit with prejudice. The judge also had some harsh words. Here’s an example:

Then Team Trump immediately declared that losing was their goal so that they could go quickly to the Supreme Court:

The problem is that Trump lost on a motion to dismiss, not on the merits of the case. (A judgment on the merits is when there is a trial or hearing and evidence is presented. At this stage, no evidence has been presented.)

Technically what Judge Brann did was grant the defendant’s motion to dismiss. He threw the case out with prejudice, which means he won’t even let them refile. 

This won’t work. The only thing that can prevent a state from certifying the election is a court order preventing them from certifying. In other words, the court must issue an order stopping the certification.

They have to persuade the appellate court that the lower court shouldn’t have dismissed the case. The appellate court will look at the record from the lower court: docs filed, transcripts of hearings. They’ll hear arguments on whether the judge erred.

The issue on appeal will be: Should the lower court have allowed the case to proceed, or was the lower court correct in throwing the whole thing out and refusing to allow an amended complaint. 

Correct. It’s the ultimate cynicism. They don’t believe rule of law exists. They think everyone cheats and breaks laws, and the ones who end up on top, are the best cheaters.

What’s next? This evening, Team Trump plans to appeal to the appellate court. This is actually just a request to expedite the briefing.

The appeal will be limited to a request for the judge to let them amend their complaint so they can add more equal protection / civil rights violations. They are not trying to prevent certification tomorrow. They’re asking the appellate court to act quickly enough so that their claims can be heard in the lower court by December 8th. 

If the appellate court allows them to refile in the lower court, the defendants will file another motion to dismiss, which is likely to succeed because it’s clear from this doc that the stuff they want to add is just as frivolous as the first time. If they do get a hearing, they’ll lose. After the things this judge said already, he’s not going to overturn votes in Pennsylvania. There is just no way. 

If this moves at the speed of a locomotive, we’re looking at late December before this wraps up in the lower court. Then those decisions will have to be appealed first to the appellate court, and then to the Supreme Court.

By the time this would get to the Supreme Court, Biden will be sworn in. 

So you know what? This is all theater. It’s a stunt. 

They want to be able to present bogus evidence in court for the headlines and to keep people focused on their bogus claims.

Photo by Eduardo Munoz, Reuters

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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