Last Tuesday, former New York City Mayor Rudy Giuliani appeared in federal court for the first time in 30 years, representing the Trump campaign in its efforts to prevent Pennsylvania from certifying President-elect Joe Biden’s victory in this State.
It was a disaster for Giuliani. The then mayor and federal prosecutor struggled to explain what exactly was the basis of Trump’s legal claims. And he admitted that he was unfamiliar with basic legal terms such as “rigorous examination,” one of the rudimentary vocabulary terms taught to all law students upon their introduction to constitutional law.
On Saturday evening, Judge Matthew Brann gave his opinion on this trial, Donald J. Trump for President v. Boockvar, and the judge did not fire any punches. Brann not only rejected the legal arguments of the Trump campaign, he mocked the campaign for its inability to present a coherent argument – or provide any legal backing for crucial elements on their claims. .
Referring to the main legal argument of the Trump campaign, Brann writes that “this claim, like Frankenstein’s monster, was randomly assembled from two separate theories in an attempt to avoid controlling the previous ones. And this is just one of the many scathing lines from a judge who is clearly frustrated with the incompetence of the lawyer who is on display in his courtroom.
It should be noted that while Brann was appointed to the federal bench by Democratic President Barack Obama, Judge held several leadership positions within the Republican Party. Obama often had to make deals with Republican senators to appoint GOP judges, to prevent those senators from blocking other Obama candidates.
Indeed, one person who seems particularly impressed with Brann’s conservative street credit is Sen. Pat Toomey (R-PA), who issued a statement shortly after Brann’s decision congratulating President-elect Biden and Deputy president-elect Kamala Harris. “With today’s decision by Judge Matthew Brann, a longtime conservative Republican whom I know to be a fair and impartial lawyer, to dismiss the Trump campaign trial,” Toomey said in his statement, “the president Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania. “
Trump could potentially appeal Brann’s decision, and claims he will. But, given the weakness of his campaign’s arguments, which Brann repeatedly points out, such an appeal is unlikely to succeed.
Trump wanted to deprive millions of voters
The main argument of the Trump campaign is disputing an email that Pennsylvania Secretary of State Kathy Boockvar sent to county-level voting officials urging them to “provide information to party officials and candidates when pre-solicitation that identifies voters whose ballots have been rejected, ”So that these voters can be notified that they made an error in submitting these ballots, and will have the opportunity to remedy this fault.
It turns out that not all counties followed this advice. The Trump campaign claims that Philadelphia, a Democratic stronghold, has notified voters that they must correct errors in their absent ballots, unlike officials in Republican-leaning counties. So, the campaign claims, postal votes cast in Biden’s friend Philadelphia were more likely to be counted than votes cast in areas of the state more favorable to Trump – and that discrepancy amounts to unconstitutional discrimination.
But the campaign is seeking an extreme remedy for this alleged violation: it has asked Judge Brann to ban the state from certifying the results of its 2020 election. Because a small number of Trump voters would have had more than struggling to vote than some Biden voters, Trump’s campaign is actually asking Brann to deprive the entire state of Pennsylvania – something Brann explicitly refuses to do.
As Brann writes, “Banning the certification of election results would not restore the voting rights of individual applicants. It would simply deprive over 6.8 million people of their right to vote.
If the Trump campaign was correct that Pennsylvania violated the Constitution by only informing certain voters of the need to correct errors in their missing ballots, then the appropriate remedy is to give all voters who needed to heal their ballots an opportunity to do so. It is not about depriving millions of their voting rights. “The answer to invalid ballots,” writes Brann, “is not to invalidate millions of others.”
Brann’s Opinion repeatedly criticizes Trump’s lawyers for incompetence
Judicial opinions are generally non-compliant documents that avoid direct criticism from lawyers – both out of professional courtesy and because judges generally want to avoid giving the impression that their disregard for a particular lawyer may have influenced their decision. But Judge Brann clearly believes that Trump’s lawyers behaved blatantly in his courtroom, and that behavior is worth remembering over and over in his opinion.
At the start of his opinion, Brann sums up the trial in ten damning words: “The plaintiffs are asking this court to deprive nearly seven million voters.” The mere fact that Trump’s lawyers are even asking for such a thing is bold. As Brann notes, “this Court has not been able to find a case in which a plaintiff would have sought such a drastic remedy in an election, because of the sheer volume of votes sought to be struck down. . “
And yet Trump’s lawyers came to court with no evidence or legal authority that could justify such a result. “One would expect that, in seeking such a surprising outcome, a plaintiff would be formidably armed with compelling legal arguments and factual evidence of rampant corruption,” writes Brann. But it didn’t happen. Instead, this court was faced with strained unfounded legal arguments and speculative accusations, unsubstantiated in the operational complaint and unsupported by evidence.
Brann also spends an entire section of his opinion describing the game of musical chairs that Trump’s lawyers appeared to be playing as they actively placed the Boockvar Case. “The plaintiffs have made several attempts to modify the pleadings and have brought in and removed lawyers in seventy-two hours,” he wrote. On the eve of oral argument, Trump attempted to replace his entire legal team. Giuliani was added to the team on the same day as the hearing in which the former New York mayor appeared to be unfamiliar with the fundamentals of the case.
At other times, he says, Brann denounces the inability of Trump’s legal team to explain the essential parts of their legal argument. To take a case to federal court, for example, a plaintiff must show that he or she has been harmed in some way by the defendant – a requirement known as “standing.” Yet, as Brann writes, “the ongoing investigation into the Trump campaign is particularly nebulous because neither in the [campaign’s amended complaint] nor in its presentation does the Trump campaign make clear what its alleged prejudice is.
This led Judge Brann to “embark on a massive project to review almost every case cited by the plaintiffs to piece together the theory of quality for this plaintiff – the Trump campaign.”
So despite the harsh rhetoric in his opinion, Brann has been extraordinarily generous to the Trump campaign and its lawyers. Rather than simply taking the incompetent arguments presented to him and dismissing them outright, the judge took the time to construct a cohesive version of Trump’s arguments – and then rejected that better version.
I could go on beating this horse, but he’s already dead. Electoral law professor Rick Hasen said of Giuliani’s appearance in Brann’s courtroom: “I have never seen a worse lawyer in an electoral law case in my life. And Brann’s opinion makes it clear how bad the Trump campaign lawyers have been.