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The judge is giving Giuliani *lots* of rope. https://twitter.com/ryanjreilly/status/1328776597894295553
... and Giuliani is arguing at length about fraud, lack of access by Republicans to observe vote-counting and other issues that the Trump Campaign expressly dropped from its lawsuit.
Giuliani is going on at length about Republicans not being able to observe vote-counting, and also apparently Democrats because not all Democrats are corrupt. Recall that Trump's campaign dropped this part of its lawsuit and this argument has nothing to do with anything.
Giuliani says the campaign has lots of evidence of election problems, so the court should definitely hold a hearing, but also he doesn't want to burden the court with all of this evidence.
Now he's trying to enter photographs of poll-watchers as exhibits, but this is a hearing on a motion to dismiss, so the question isn't about the weight of the evidence but whether Trump's campaign has brought claims that can be litigated at all.
The judge indicates that he will have some questions.
Lawyer for the defense notes (correctly) that Trump's lawsuit doesn't actually contain any allegations of voter fraud or people having voted illegally.
The court is aware that everyone's connection to the hearing dropped and is working "feverishly to restore access."
The line is still static, but periodically it sounds like somebody's sighing.
The court is still working "feverishly" with asterisks, but now with a black font, so make of that what you will.
Now it's back to a red font, with new dial-in information and it sounds like we're about to resume:
And, the 8,000-person conference call is back and the hearing resumes.
The judge says a clearly worked-up lawyer for various Pennsylvania counties is perhaps "moving around too much" and is hard to hear. The judge notes that he himself is sitting quite still.
Now we're having a recess, but it will be an "ordinary recess," not like the one where the phones crashed.
The judge again says he will have some questions.
The judge again says he will have some questions.
The first question goes to the lawyer who asked to withdraw. How can it possibly be justified to disqualify all of PA's votes based on a complaint from two voters that they didn't get to cure their ballots?
Giuliani argues that "mail-in ballots are inherently difficult, fraudulent. ... As far as we're concerned, those ballots could have been from Mickey Mouse."
Giuliani described himself as "a good lawyer."
The Trump lawyer who's asked to quit chimes in to finish Giuliani's answer, saying it's an Equal Protection problem to count some votes but not others, but this is exactly the relief the Trump campaign is seeking from the court.
Giuliani says he can't raise the claims he's not raising in federal court in state court, which are "virtually closed to us," apparently because the campaign has already lost on those claims in state court.
The judge would like to know why Giuliani keeps arguing issues that the campaign removed from its amended complaint?
Judge: "Does the amended complaint plead fraud with particularity?"
Giuliani: "No."
Giuliani: "No."
Judge: Why are you suing Philadelphia and other counties for things that different counties did?
Trump's lawyers are trying to explain why the two voters who are plaintiffs in the case are not suing the counties that denied them the ability to cure defective ballots but instead are suing other counties that allowed other voters to cure ballots so they could be counted.
Judge asked why they're suing the Secretary of the Commonwealth. How did her actions cause two counties deny two plaintiffs the right to vote?
These are not the kinds of questions a judge asks when he's seriously buying your argument. These are "tell me again why this isn't bullshit?" questions.
Judge asks "what is the injury" to Trump's campaign from some voters being allowed to cure?
Kerns says it means some votes were counted improperly.
Kerns says it means some votes were counted improperly.
Question: Why does the campaign have standing to vindicate plaintiffs' rights when the individuals are capable and willing to vacate their rights on their own?
Giuliani says the campaign was harmed because these voters might have been allowed to cure their ballots if they lived in a different part of the state, and that is a "heavily Democratic part of the state."
Judge wonders whether one of the counties Giuliani says is a Republican county that didn't let people cure their ballots is actually a Democratic-leaning county?
The judge is pointing out that a lot of the Trump campaign's claims about "Democrat counties" breaking election rules are actually counties that supported Trump.
Judge: Is there any precedent from this circuit expressly addressing the campaign's theory of competitive standing?
Sorta.
The campaign cites a 3rd Cir. case - by having the plaintiff in that case speak to the judge. The case doesn't analyze standing. https://scholar.google.com/scholar_case?case=5071163011663898421&q=19+F.3d+873+(3d+Cir.+1994)&hl=en&as_sdt=6,47#r[4]
Giuliani is now arguing that Biden-supporting counties didn't screen ballots as carefully as counties where more people voted for Trump. This isn't part of the campaign's lawsuit.
State lawyer points out that the case Trump's campaign cited for standing doesn't mention standing. (This is correct - it's not in the case.)
Judge is asking pretty rudimentary questions: What standard of review should I apply?
Giuliani: "The normal one."
Giuliani: "The normal one."
Giuliani: "This is not a fraud case."
Judge is asking again how the secretary's guidance that counties can cure defective ballots denied the plaintiffs their right to vote. Trump's lawyer says some voters got the right to cure. Judge: "Is that a denial of the right to vote?"
Giuliani says this was a "totally unequal, unfair election."
Judge: In order to violate the Equal Protection Clause, the defendants need to do something more than violate state election law. Why is this a federal case?
Judge: Why doesn't the Trump campaign have standing here? Just sum it up for me again.
State: They can't point to anything that has causation or redressability.
State: They can't point to anything that has causation or redressability.
The judge is giving Trump's campaign until 5 p.m. tomorrow to file an opposition to the motion to dismiss. The state would have until Thursday to file a reply. So .... probably no decision today.
The judge says the plaintiffs should consider whether it should file a new motion for a preliminary injunction, because the old one might have gone away with the old complaint.
Giuliani says they want to file a second amended complaint.
Judge: Did you file a motion to do that?
[no]
"You need at this point to file a motion. You might get agreement or you might get opposition from the defendants."
Judge: Did you file a motion to do that?
[no]
"You need at this point to file a motion. You might get agreement or you might get opposition from the defendants."
Judge: You've got to go through the procedures.
[This is because the Federal Rules of Civil Procedure say a party can amend its complaint once on its own, but after that it needs the opposing party's consent or leave of court.]
"The last issue is, I call it the Kerns vs. Kirkland and Ellis matter." This is the issue of an obnoxious voicemail. "That's bad form; it's not a sanctionable matter." He says lawyers can represent unpopular causes and if he has doubts he can ask the NAACP lawyer in court.
The judge says "it just wastes my time. It's not sanctionable but it's bas form. ... Don't do that again."
"Individuals have a right to legal representation of their choice."
"Individuals have a right to legal representation of their choice."
Judge Brann says he doesn't see a need for an evidentiary hearing "at this juncture."
The judge thanks Linda Kerns - the Trump lawyer who asked to withdraw from the case - for attending the hearing and arguing for the campaign. He basically said he wanted to have someone on that side who was familiar with the case, since the others showed up yesterday.
Judge Brann recommends that counsel staying in Williamsport "eat at one of our restaurants," and asks the marshal for a recommendation.
Judge: "There are better than usual restaurants" in this city. He recommends the Corner Hotel. He endorses the architecture, and the marshal confirms that it was easy to get in.
We are on to the Yelp portion of this hearing. The judge says he's "not a big beer drinker." It's delightful.
And the hearing on Trump's election lawsuit is over.
Tl;dr:
- No decision today.
- Rudy Giuliani, after talking extensively about massive voter fraud, said this isn't a fraud case.
- Giuliani argued lots of stuff that's not in the case.
- Judge asked very skeptical questions.
Tl;dr:
- No decision today.
- Rudy Giuliani, after talking extensively about massive voter fraud, said this isn't a fraud case.
- Giuliani argued lots of stuff that's not in the case.
- Judge asked very skeptical questions.
