Third Circuit Rejects Trump Campaign Appeal

They were rejected bigly.

Earlier today a three-judge panel of the US Court of Appeals for the Third Circuit issued a ruling in the Trump campaign’s appeal of their failed attempt in federal district court to overturn the results in Pennsylvania. The panel consisted of two Geroge W. Bush appointees, D. Brooks Smith (the Chief Judge) and Michael Chagares as well as a Trump appointee, Stephanos Bibas, who wrote the opinion.

The opinion was not kind to the campaign.

From the introduction:

The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.

Towards the end of opinion, on page 17, Judge Bibas writes:

As discussed, the Campaign cannot win this lawsuit. It conceded that it is not alleging election fraud. It has already raised and lost most of these state-law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. And it does not contest that it lacks standing under the Elections and Electors Clauses. These claims cannot succeed.

Well, then.

It cannot be stressed enough that Rudy Giuliani and the Trump campaign have repeatedly alleged massive electoral fraud, but they did not bring any evidence to court.

Indeed, even as they sought to overturn the election results, they did not even claim fraud in court. From page 11 of the opinion:

To start, note what it does not allege: fraud. Indeed, in oral argument before the District Court, Campaign lawyer Rudolph Giuliani conceded that the Campaign “doesn’t plead fraud.” Mot. to Dismiss Hr’g Tr. 118:19-20 (Nov. 17, 2020). He reiterated: “If we had alleged fraud, yes, but this is not a fraud case.” Id. at 137:18.

Other noteworthy passages are as follows (all emphases mine).

From page 12:

Though it alleges many conclusions, the Second Amended Complaint is light on facts.

and

“[u]pon information and belief, a substantial portion of the approximately 1.5 million absentee and mail votes in Defendant Counties should not have been counted.” Id. ¶¶ 168, 194, 223, 253. “Upon information and belief” is a lawyerly way of saying that the Campaign does not know that something is a fact but just suspects it or has heard it.

and

the Campaign offers no specific facts to back up these claims.

Also interesting (page 14):

3. The Campaign never pleads that any defendant treated the Trump and Biden campaigns or votes differently. A violation of the Equal Protection Clause requires more than variation from county to county. It requires unequal treatment of similarly situated parties. But the Campaign never pleads or alleges that anyone treated it differently from the Biden campaign.

Page 15:

4. The relief sought—throwing out millions of votes—is unprecedented. Finally, the Second Amended Complaint seeks breathtaking relief: barring the Commonwealth from certifying its results or else declaring the election results defective and ordering the Pennsylvania General Assembly, not the voters, to choose Pennsylvania’s presidential electors.
It cites no authority for this drastic remedy

Page 16:

Here, however, there is no clear evidence of massive absentee-ballot fraud or forgery. On the contrary, at oral argument in the District Court, the Campaign specifically disavowed any claim of fraud.

Page 19:

Granting relief would harm millions of Pennsylvania voters too. The Campaign would have us set aside 1.5 million ballots without even alleging fraud. As the deadline to certify votes has already passed, granting relief would disenfranchise those voters or sidestep the expressed will of the people. Tossing out those ballots could disrupt every down-ballot race as well. There is no allegation of fraud (let alone proof) to justify harming those millions of voters as well as other candidates.

The brazen disregard for the voters of the United States on display here is stunning.

Law professor Rick Hasen assesses the case thusly at his Election Law Blog:

This is an utter repudiation of the Trump campaign’s ridiculous lawsuit by three Republican-appointed judges. It shows the absurdity of the litigation: besides the fact that the case was poorly lawyered—Rudy Giuliani’s oral argument was the worst I have heard in 25 years of following election law cases-the case was as weak and conclusory in its allegations of wrongdoing as it was spectacularly antidemocratic in seeking to disenfranchise all of Pennsylvania’s voters by putting the matter after the fact into the hands of the state legislature. It was an awful lawsuit, and it was right to be rejected by the court, but it is still good to see the courts hold and not allow for a lawsuit that would have overturned the results of a legitimate election on the flimsiest of pretexts.

He also provided this handy summary of other cases of relevance via Twitter:

To be clear: this was a clown show of epic proportions but we should not forget that the clowns in question tried to disenfranchise the voters of Pennsylvania. This was a despicable, anti-democratic act.

And it should be stressed, on the off chance that someone who is reading this thinks that there was massive fraud, that if the Trump administration had any evidence of its claims of fraud, it failed to use it in court. They have lost over two dozen cases in court. Why would that be if they had any evidence whatsoever?

Rudy is a grifter who is lying to the public, plain and simple (the same is true of Trump). Rudy, however, has demonstrated in court to be a liar insofar as he only makes claims of fraud at press conferences, not when before a judge who could hold him accountable. When he is in court, he focuses on minor issues, like the distance between observers and ballot-processing.

If skeptics want to test what evidence team Trump thinks they really have, as opposed to what they will claim to get on TV, just look at what they are willing to present in court.

FILED UNDER: Campaign 2020, Donald Trump, Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. CSK says:

    Any Trumpkin will tell you that this was a brilliant ploy to get the case to the Supreme Court as quickly as possible.

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  2. gVOR08 says:

    Was just glancing at FOX.com. Commenters there, and letter writers to my local paper, are all convinced the election was stolen. Evidence? – Everybody knows. The Stolen Election will live for years, taking it’s place alongside the Lost Cause.

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  3. Kathy says:

    Far be it for me to criticize a law professor, but I believe the summary of Trump’s remaining lawsuits is the following:

    Whaa! No Fair! NO FAIR!!1!

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  4. JohnSF says:

    @CSK:
    Ah, but, you see, it’s all a cunning plan to replace the Supreme Court Justices with new Trumpkin super-ultra-loyalists by having all the current Justices die laughing when they read the appeal.

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  5. ImProPer says:

    @CSK:

    “Any Trumpkin will tell you that this was a brilliant ploy to get the case to the Supreme Court as quickly as possible.”

    You are right about the trumpkins, but I’m wondering if the Courts are playing this thing through to drive a steak through the heart of Trumpism. I’ve been frustrated that they haven’t been dismissing this junk show with prejudice, many stupid and frivolous claims ago. The more this game goes, the harder it gets for even the dumbest Trumpist to deny reality, their messiah is a buffoon.
    I just have to wonder, if Giuliani et al, are trying to sabotage themselves, for a good stab in the back routine on rwnj radio, and are actually being stymied by the courts by keeping it going.

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  6. gVOR08 says:

    @Kathy: As @CSK: notes, they’ll appeal to the Supremes. The Chief Justice of the circuit, an HW appointee, assigned the opinion to the Federalist Society Trump appointee, apparently to flag how stupid this is. Hopefully the Supreme’s will deny cert, following the Robert’s principle, “C’mon guys, you gotta give me something to work with.” But after the NY church case I fear five of them will go with the Alito rule, “Never miss a chance to own the libs.”

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  7. CSK says:

    @JohnSF: @ImProPer:
    This is bizarre: The Trump Fan Club is claiming that Giuliani and Co. HAVE presented the courts with boatloads of evidence and the courts are refusing to look at it.

    I don’t know how this comports with the notion that this was a brilliant ploy to get the case before the United States Supreme Court.

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  8. JohnSF says:

    @CSK:
    It all makes sense.
    For an arbitrary value of “sense”.
    Where we go one, we go nuts!

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  9. Kathy says:

    @gVOR08:
    @ImProPer:

    I’ve read odd comments from trumpkins on social media suggesting the evidence will be presented at the Supreme Court.

    To the best of my knowledge, the SC is not a trial court, but the last court of appeals. they can review rulings, but not judge on the merits. Ergo, they won’t review evidence presented (all the more so since there isn’t any).

    But if Brett, Neal, Amy, Clarence, and Sammy hand the election over to Minimus, they will perish at the hands of a righteously angry mob, probably hung from a lamppost with their own intestines.

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  10. Joe says:

    I can’t remember the rules of direct appeal v. seeking certiorari – the importance is whether the USSC has to “hear” the appeal (direct appeal) or whether they can deny cert. If the second, I am reasonably confident they will deny in a heartbeat and not let this shit show get near them.

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  11. JohnSF says:

    @gVOR08:
    Maybe.
    I suspect if Alito even hints at giving this cognisance, Roberts’ll take him to the woodshed and apply a 2×4 to his behind.

    Barrett I think would go with the obvious legalities, and Kavanaugh lacks the stones to go cowboy.

    If it was one state on the margins, with a case that was even a quarter way to viable, maybe they might say, “what the hell.”
    But to overturn just one, fail to install the Donald, and end up in legal history bracketed alongside Giuliani, Powell, and the f@ckin Quacken?
    And still lose.
    And maybe get packed out?
    And maybe get impeached?

    Nope.

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  12. gVOR08 says:

    @Kathy: IANAL, but I believe you are correct. Appeals courts generally, including the Supremes, are not supposed to reconsider the evidence. But I seem to remember the Supremes doing so when it’s convenient for them to do so, selectively. Although I think the opinion in this case in effect said that even if you stipulated everything in their affidavits is true, they still don’t have a case.

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  13. There does appear to be a couple of bizarre beliefs out there in Trumpland.

    One if that the lower courts wouldn’t allow evidence (I take it that Rudy is the source of this–a lie to cover his lack of evidence).

    Another is that SCOTUS will come to the rescue and allow the evidence to be presented. But, of course, that’s not how SCOTUS works.

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  14. Kathy says:

    @Steven L. Taylor:

    There does appear to be a couple of bizarre beliefs out there in Trumpland.

    Would there were only a couple 🙂

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  15. @gVOR08: SCOTUS can function as a court of original jurisdiction in some cases, but this isn’t one of them–they would clearly be acting as an appeals court and would not be allowing the introduction of new evidence at their level.

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  16. @Kathy: No joke.

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  17. CSK says:

    I do not get this at all. These lawyers are ruining their lives and reputations…and for what? Trump sure won’t pay them. So what do they end up with? A gig on Newsmax or OAN? Big whoop.

    Sure, okay, Sidney Powell may be milking the rubes. But the rest? They’ll be unpaid laughingstocks.

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  18. ImProPer says:

    @Kathy:

    “I’ve read odd comments from trumpkins on social media suggesting the evidence will be presented at the Supreme Court.”

    For being the most intelligent man in history, he didn’t choose to share his vast intellect with his followers. Even I know that the district Court is where you present your evidence. Not hold it tight to the vest through the appellate process, and The Supreme Court is not where even the most obtuse attorney would want to start their case.
    Now I’m not a nine dimensional chess player, but I can see no upside for Trump that the Courts are refusing to put an end to the junk show. The whole world is witnessing the Courts bending over backwards to placate him, hard to put a forth stab in the back myth, and plus refusing to allow his case to die an honorable death drives the point that he and his lackeys are buffoons, ad nauseum.

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  19. Jon says:

    @CSK: Rudy may have some legal exposure of his own, related to his Ukrainian adventures, that may come to light when Trump leaves office. And Sidney and Jenna may well have some issues as well, related to the Flynn trial and the DOJs effort to torpedo that trial. This may be more self-interest than true believer; looking like idiots may be the lesser of many evils.

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  20. JohnSF says:

    @Jon:
    Anyone else see the story about the Hunter Biden laptop repair guy making himself scarce?
    LOL.

    Giuliani is in a world of pain once Trump is out of office. He has really seriously p@ssed off a lot of Ukrainians.

    “I say, ‘Did you see a sign on the door that says, ‘Meetings with Zelensky arranged here’?
    “They said, ‘No.’
    “I said, ‘Well then, you’ve ended up in the wrong place.’”

    Very much in the wrong place.
    These are people who will look for payback one you have lost your “roof”.

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  21. de stijl says:

    @CSK:

    Toensing and diGenova despite being touted as part of the Elite Task Force have been notably absent. No names on docs. No shilling on Fox. Weird. (The rhyming happened by accident.)

    It’s almost like they see the dead horse and actively chose not to flog it to preserve what remains of their respective careers.

    Afaict, these folks have no staff. Outsourced pleadings with a Giuliani or Ellis wrapper.

    The pertinent judge has to walk them through what is in and what isn’t in their own documentation.

    It would be sad if it wasn’t so funny.

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  22. DrDaveT says:

    It cannot be stressed enough that Rudy Giuliani and the Trump campaign have repeatedly alleged massive electoral fraud, but they did not bring any evidence to court.

    Giuliani has no official position, other than “mouthpiece”, but Trump is POTUS. At some point, there has to be some law against deliberate falsification in the course of one’s official duties… doesn’t there? How did we miss that one, if not?

    I can understand why no one would want to set the precedent of holding presidents accountable for falsehoods, but there comes a point where it’s not just lying, it’s sedition.

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  23. ImProPer says:

    @CSK:

    “This is bizarre: The Trump Fan Club is claiming that Giuliani and Co. HAVE presented the courts with boatloads of evidence and the courts are refusing to look at it.”

    This would of been bizarre about four years ago. Now it is an axiom. Don’t let your eyes and frontal lobe blind you to the brilliance of dear leader.

    “I don’t know how this comports with the notion that this was a brilliant ploy to get the case before the United States Supreme Court.”

    Me neither, I do know that Trump and Rudy in the court of public opinion, are being humiliated over and over and over.
    I’m thinking right about now the only thing that could be keeping them from doing a Thelma and Louise off Trump tower, is their absolute lack of self respect.

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  24. de stijl says:

    @JohnSF:

    As a non-American you may not know Giuliani’s back story.

    He was the US Attorney in the Southern District of New York aka SDNY. Easily the highest profile job at that jurisdictional level.

    By all accounts he was extremely good at his job. He is widely credited with bringing the Italian-American Mafia to heel. Think Good Fellas era. People wrote magazine articles about him.

    He did it well enough to be elected mayor of NYC which he sucked at for a few years and then 9/11 happened.

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  25. Paine says:

    Seeing as how Trump has spent his entire life with no other guiding north star than “what’s best for me” I imaging he is having trouble grappling with the idea that there are people out there with integrity who do what what the the law, their job, or their duties require of them, regardless of their preferred outcome.

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  26. Jay L Gischer says:

    The fascinating thing about the Giuliani back story is that running the (Italian) mob out of NY made room for the Russian mob to move in.

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  27. Sleeping Dog says:

    Something to consider; this appeal was limited to asking the court of appeals to allow trump et al to repackage the same argument that has been dismissed by several state and fed courts in a new filing. Even if the supremes here the case and rule in trumps favor, the remedy will be to return the case to the trial court and there is no guarantee that the remanding will include a stay on certification of the election.

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  28. Sleeping Dog says:

    Assuming the supremes give cert, it will be interesting to see who represents trump in front of the SC as an attorney must be a member of the SC bar to do so. That is why so many SC cases seem to be argued by the same attorneys.

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  29. Joe says:

    @Sleeping Dog:
    The only legal question (that the Supreme Court might address) is whether the district judge abused his discretion by refusing to allow the Trump campaign to amend their complaint – again. District judges frequently let litigants amend their complaints several times after dismissing them without prejudice. Dismissing a complaint means, even if everything you allege here is true, you still don’t win. It literally assumes you can prove whatever it is you allege. They have tried twice and they can’t even allege enough to win.

    It’s a little more complicated analysis if they are trying to get an injunction. For that they have to prove a likelihood of success on the merits and the judge can make some evaluation of the evidence they claim to have and how likely it is. But I understand their complaint has been dismissed and the district judge refused to allow them to amend, dismissing with prejudice. Historically, district judges have been given a lot of discretion to dismiss with prejudice and use it in part to get rid of plaintiffs who are wasting everyone’s time. I don’t think even this USSC would force the district judge to let them file another complaint here.

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  30. @DrDaveT:

    Giuliani has no official position, other than “mouthpiece”, but Trump is POTUS. At some point, there has to be some law against deliberate falsification in the course of one’s official duties… doesn’t there? How did we miss that one, if not?

    But he isn’t doing the lying in court. He is making allegations about minor procedures of ballot processing and the distance at which observers get to stand. The cases themselves are all about nitpicking items.

    This is the tell that they have nothing: they aren’t willing to risk real legal sanctions in court. They save all their real lies for the public.

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  31. Just nutha ignint cracker says:

    @JohnSF: Surely they’re not going to get rid of Gorsuch, Kavanaugh, and Covid Barrett after they worked so hard railroading them in, are they? It seems like such a waste of effort.

    ReplyReply
  32. JohnSF says:

    @Just nutha ignint cracker:
    Sometimes you just gotta sacrifice the good to get the best. 🙂

    ReplyReply

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