Read on Twitter
Heard the "3,999 on the call" announcement, but now just silence. Bummer. The dark angel of tech visits me again.
Seems like quite a few people on the call heard the "you are now joining the conference" message and then only silence, like me. Pity. Oh well. There's a number of other people livetweeting it.
Made it on the backup. Can hear now. https://twitter.com/digitalhen/status/1328773293642539008?s=20
Judge says "It's my preference that one attorney presents the argument for all defendants and then IF IT IS NECESSARY other defendants can make individual arguments," or words to that effect.
That . . . is not a good start for plaintiff.
That . . . is not a good start for plaintiff.
Judge: I understand now the only remaining counts are violation of equal protection and electors clause.
Rudy: Right.
Rudy: Right.
OMG. OMFG.
Rudy: We want to re-file our due process claims which we think was incorrectly removed from our latest amended complaint.
Angels and ministers of grace defend us.
Rudy: We want to re-file our due process claims which we think was incorrectly removed from our latest amended complaint.
Angels and ministers of grace defend us.
Rudy admits that Third Circuit case suggests that they don't have standing on the elector clause. Rudy says yes but they want to amend the just-amended complaint -- for the third time in a week? -- to put back in the due process claim they just took out.
Rudy is arguing the equal protection claim. Claims "widespread nationwide voter fraud," reminds judge that at motion to dismiss stage their claims have to be taken as true.
Rudy is quoting Rahm Emmanuel and name-checking Jimmy Carter to say that Democrats have taken advantage of the pandemic to engage in massive nationwide voter fraud.
He is saying James Baker, Justice Souter, and the New York Times have warned of voter fraud.
He is saying James Baker, Justice Souter, and the New York Times have warned of voter fraud.
Rudy is now complaining about Mayor Daley in Chicago falsifying an election. That would be Richard Daley, in the 1960s.
I despite Rudy, so take this with a grain of salt, but to me he is meandering, low-energy, undynamic, and a very mediocre oral advocate. He is scattered in his approach, with many digressions and parentheticals.
It is several minutes into Rudy's argument. Other than a general theme of fraud, I don't know what he's asking for or how what he's saying is related to that or how he's couching it in what the law provides.
Rudy is absolutely leaning in to this being about a nationwide voter fraud scheme, not focusing on PA, which is a very dumb move legally but I suppose is their political closing argument.
There are excellent Republican/conservative oral advocates. Rudy is not one of them today. His presentation would be putting you to sleep even as a Fox rant.
I keep emphasizing this because it is such a deviation from the norm of competent advocacy in an important case.
I keep emphasizing this because it is such a deviation from the norm of competent advocacy in an important case.
Rudy finally gets back to some semblance of a legal argument: that some people got to correct absentee ballot errors and others did not, based on location.
"I don't know what is more serious than being denied your right to vote," says Rudy Giuliani, who is, for the record, a member of the Republican Party.
Rudy is very angry that the defendants are making a standing argument, and calls it frivolous.
A concern with avoiding frivolous legal arguments has not been a dominant theme in the Trump election lawsuits.
A concern with avoiding frivolous legal arguments has not been a dominant theme in the Trump election lawsuits.
Rudy is misrepresenting the Clark County issue, as many other Trump surrogates have. https://twitter.com/meganmesserly/status/1328486548199731200?s=20
Rudy is, as other Trump surrogates have, attacking cities as corrupt. The messaging is not subtle.
"This didn't happen in honest places," says Rudy, again hammering on the GOP's "cities are evil shitholes run by you-know-who" themes.
Rudy now doing a slightly better job of actually articulating the argument: the law requires observers to have meaningful opportunity to observe inspection of absentee ballots, that law was broken.
He says the votes must be "cancelled."
He says the votes must be "cancelled."
Rudy: I ask the Court to deny the motion to dismiss so we can quickly move to a hearing and put on our hundreds of declarations. Asks to mark things as exhibits, which one does not really do at a motion to dismiss.
To be clear: Rudy Giuliani wants to cancel the votes of -- disenfranchise -- people who voted absentee in those cities Republicans view as crooked and illegitimate.
Rudy ends his argument against the motion to dismiss. Judge asks Ms. Kearns if she wants to argue, she says no, she has moved to withdraw, and defers to new counsel on strategy. Huh.
Judge asks Trump's new local counsel if he wants to be heard, he says no. Wise choice. Defendants' counsel is up.
[I would fire an employee who appeared for a client in a crucial case and performed as Rudy Giuliani did. The argument, whatever its merits, could have been presented vastly more competently. This was an unprepared C student.]
Defendants' attorney identifies the relevant complaint, identifies the remaining issues before the court, and explains what he's going to argue about each and how it relates to the motion before the court.
Kind of like a professional advocate.
Kind of like a professional advocate.
Defendant explains vastly more clearly what Plaintiffs' arguments are than Rudy did. Points out what Plaintiffs don't argue: no claim of any illegitimate votes counted or legitimate votes not counted.
Defendant points out that no court has ever accepted Plaintiff's theory that alleged violations of state counting-observation laws justify canceling votes or stopping certification, and that there's no authority showing it can be a constitutional violation.
Defendant's counsel is proceeding based on a series of slides and in an organized way with an outline and signposts. Again, like a professional advocate. First is addressing standing argument. He's applying these facts to the judge's own prior opinion about standing.
Defendant's counsel is citing the other judges who have ruled on the standing issue and how their logic applies to this case. Thesis: plaintiff's theory is that illegitimate ballots have been counted, but that doesn't providing standing to the campaign or other voters.
[Standing is an esoteric and complex area of the law driven by the maxim that federal courts have only limited jurisdiction. Generally speaking, the conservative view is to have strict standing requirements and be skeptical of expanding standing. Generally.]
The standing argument is this: to have standing a plaintiff must have a PARTICULAR injury, not one EVERYONE has suffered, and someone who is complaining that some illegitimate ballots were counted suffers the same injury as EVERYONE and has no PARTICULARIZED injury.
You might disagree with that standing rule, but Defendant's attorney is citing precedent that shows it is the rule.
Defendant's counsel is effectively cutting through rhetoric to address what Plaintiffs are actually claiming and asking for.
Defendant's counsel is effectively cutting through rhetoric to address what Plaintiffs are actually claiming and asking for.
Defense points out that Plaintiff voters are not suing THEIR OWN counties for failing to let them correct their ballots, but suing OTHER counties for THOSE counties letting OTHER people correct ballots. That's not standing because those corrections don't injure those voters.
Defense points out that several things Rudy claimed are not alleged in the complaint, and that in general the practice is to allege the facts you think are relevant in the complaint instead of rambling about them at argument.
He put it more diplomatically.
He put it more diplomatically.
Defense counsel has the INDESCRIBABLY HUGE benefit of being able to cite THIS JUDGE'S written ruling on standing in an election case from October.
This is like if your wife asks you "who do you think is the prettiest actress," and she's an actress.
This is like if your wife asks you "who do you think is the prettiest actress," and she's an actress.
Judge: how many matters are pending in PA state courts? [Judge is responding to defense arguments that many of the claims here are suited for PA state courts but not federal court.]
Shit. Lost audio.
I fear I will miss Rudy's masterful rebuttal now.
The line is just static.
The static is making a more effective argument against the motion to dismiss.
The static is making a more effective argument against the motion to dismiss.
OK. They are taking a break in the hearing and trying to fix the phone connection. Meanwhile here is @TheDebbieMia's impression of me rn
OK. They have repaired the line and we're waiting for the hearing to start again.
We're back up and the defense is back to its argument. Defense counsel is effective.
However, defense counsel keeps calling the federal judge "judge" and it's irking the living shit out of me.
(It's "Your Honor" in federal court, please.)
However, defense counsel keeps calling the federal judge "judge" and it's irking the living shit out of me.
(It's "Your Honor" in federal court, please.)
Defense is now citing cases for the proposition that alleged violations of STATE elections law -- even by state actors, let alone by unidentified randos -- do not rise to the level of federal constitutional violations federal courts can hear.
Defense also attacking the equal protection theory, citing cases for proposition that since they can't cite any ballot that was treated differently, they don't have a claim.
Defense now leafing through the parts of the complaint the plaintiffs have deleted out of their amended complaint.
[paper shuffling sounds] Deleted, Deleted, deleted, deleted.
[paper shuffling sounds] Deleted, Deleted, deleted, deleted.
New defense lawyer argues abstention issues. This lawyer is remote rather than in the courtroom.
What's abstention? It's a doctrine that says federal courts should stay out of certain state disputes. There are different types of abstention, each with tedious names.
What's abstention? It's a doctrine that says federal courts should stay out of certain state disputes. There are different types of abstention, each with tedious names.
This second defense attorney's connection is terrible and, in addition, is taking potshots at how bad Rudy Giuliani is. It's coming off badly. When the opposition is as horrible as Rudy, you don't NEED to take shots at them. It's undignified.
"I don't think Mr. Giuliani has even read that opinion or understands it."
This attorney is mad, and it's impeding his effectiveness. Between his connection issue and his less organized and angrier approach this is a much less effective presentation than Mr. Donovan, his colleague.
STOP GETTING MAD AT RUDY, HE LOVES THAT
STOP GETTING MAD AT RUDY, HE LOVES THAT
I appreciate that genuinely evil and un-American people are employing racially tinged arguments and lies to disenfranchise hundreds of thousands of Americans, and it's totally normal to lose your shit over that as an American, BUT YOU CAN'T IF YOU'RE THE ATTORNEY STOPPING IT.
The lawyer is now much more effectively eviscerating paragraphs in the latest amended complaint, but still too angry to be really effective for my taste.
By the way, an excellent and informative appellate advocate you should be following has a different take than I do on the effectiveness of this argument. https://twitter.com/RMFifthCircuit/status/1328809839661895680?s=20
The last time I was this overtly angry in federal court it was representing @Patterico in a First Amendment case and Judge Wu gently reminded me I was talking to him and not to a jury.
Defense counsel says "I am pleading with you" to tell them to go take this shit to state court where it belongs instead of asking federal court to intervene.
Judge is extremely patiently asking defense counsel not to move around because it's making noise.
Being in a position where a federal judge is giving you tech support advice is not ideal. But there for the grace of God go I.
Being in a position where a federal judge is giving you tech support advice is not ideal. But there for the grace of God go I.
Counsel is doing a much more effective job when calmer. The challenge is that the Trump Campaign's arguments are utter bullshit of a sort that it's difficult even to explain. It's like refuting a legal argument that zebras violate due process by disrespecting tulips.
Counsel's closing is much calmer and absolutely brutal.
Judge: Do any other defense counsel need to speak?
Ten minute recess to find out. Dear other defense counsel: please recall what Satchel Paige said. https://twitter.com/Popehat/status/1101565274380066816?s=20
Ten minute recess to find out. Dear other defense counsel: please recall what Satchel Paige said. https://twitter.com/Popehat/status/1101565274380066816?s=20
We’re back. Two other counsel want to make arguments. One cites the new PA Supreme Court that just came down DURING THIS ARGUMENT finding the things Giuliani complained of are fine under PA law.
Center County admirably ends in about 75 seconds. Lawyer for DNC, an intervenor, is emphasizing some arguments already made. Read the room
