Thread by @questauthority, Good Morning, Followers of PA Legal Hijinks. Donald Trump just lost his [...]

Good Morning, Followers of PA Legal Hijinks. Donald Trump just lost his appeal at the 3rd Circuit.

I'm getting a copy of the opinion ASAP and will be back with more as soon as I have one. https://twitter.com/j_remy_green/status/1332374554648449024

https://twitter.com/j_remy_green/status/1332374554648449024

And here's the link to the ruling.

It's marked as non-precedential, which surprises me slightly, particularly given the length.

Let's hear it for the judges and clerks who CLEARLY sacrificed much of Thanksgiving to deal with Rudy's absolute nonsense. https://drive.google.com/file/d/1ktkLrVwZh-WZw5t_uzykkxN_eso0mZbf/view?usp=sharing

3rdCir.pdf

https://drive.google.com/file/d/1ktkLrVwZh-WZw5t_uzykkxN_eso0mZbf/view?usp=sharing

For those wondering - all 3 judges are Republican appointees. Smith and Chagres are GWB appointees, and Bibas is a Trump appointee.

There are no dissenting or concurring opinions; this is a unanimous ruling.

Let's dig in.

DAMN, son -

The start of this thing is NOT AT ALL COMPLEMENTARY to Trump's team. Not even a little bit.

Rudy and the other bozos should be grateful that it's not marked for publication.

For nonlawyers and non-American lawyers:
Not all appeals cases in the USA are considered precedential. The court gets to choose what is and isn't, and while non-precedential cases can be cited in arguments, they don't bind the court.

This case is non-precedential.

That doesn't mean it can't be appealed further, of course. The Trumpists can now officially petition the Supreme Court to take up this case.

By losing twice, they've completed the next step in their quest to get there. It's not going to help; I'll explain why later.

The first few paragraphs make it clear that the court was unimpressed with the dump that the President's legal team took on their docket.

The third is the most legally important. It identifies what the Trump team asked the 3rd to do, and makes it clear that the answer is "no."

Would anyone like to guess how much the Circuit Courts of Appeal, which are often thoroughly overworked, like being asked to deal with things that the state courts have already handled at all, let alone on an emergency basis?

For the nonlawyers:
"its allegations are vague and conclusory" can be read here as approximately synonymous with "they had nothing."

For reasons that I will get to at the end, "each of these defects is fatal" is a statement that further reduces the odds that SCOTUS will touch this case.

(But, in short, the more independent reasons you lose, the less likely it is that the outcome will change on further review.)

It looks like the campaign didn't manage to impress the court any more with the motion for an injunction than it did with the rest of the case.

"No merit" is blunt phrasing.

The next several pages, set out the legal background for the case, starting with state law. Not really much reason for me to comment here, so I won't.

For the nonlawyers -
Appeals courts generally give their reasons in some detail, so you get these kinds of discussions.

I want to REALLY highlight this bit for y'all because it's the kind of thing that OFTEN leads to misunderstanding and misinformation.

When a court decides whether to dismiss a case, and when that gets appealed, the courts ASSUME that the things the plaintiff says are true.

It is VERY VERY easy for people to misunderstand that and think that the court AGREED that those things were true. I've seen non-American lawyers make that mistake before, and non-lawyers also make that mistake sometimes.

That's not what's happening.

Dismissing a case - throwing it out before it's fully heard - is a court's determination that the case, whatever it is, isn't entitled to a full hearing.

We don't want to deny people their day in court, so we make the standard for a dismissal hard to meet.

So the court's inquiry when someone is asking for a motion to dismiss isn't "are these things true." It's "if everything in here is totally true, is there anything the court can do about this." And only if that answer is "no" does the case get pitched.

Sorry for the digression, but I think that was important to try to clear up in advance.

So all this stuff in this section is not the court saying that these things really happened. This is the court saying "these are the things Rudy Giuliani says happen, so we have to assume they really did."

"We commend the District Court for its fast, fair, patient handling of this demanding litigation" is the kind of phrase that sometimes appears right before the Court of Appeal goes on to explain, in painful detail, what the District Court did wrong. That's not the case here.

I suspect that this is here in part because Judge Brann genuinely deserves the complement - I listened to most of the hearing (barring some tech issues) and read the whole opinion. He was firm, fair, and courteous to everyone there. The very model of judicial professionalism.

But I suspect that this is also here in part because many people, including (predictably but disgracefully) the sitting President, have been attacking Judge Brann for purely partisan political gain.

This suggests that the time pressures of hammering out a ruling over Thanksgiving Day are the reason for the nonprecedential designation, which makes sense. They don't want any small mistakes to mess people up in unexpected ways later on.

For the nonlawyers:
You might be surprised by the amount of work that goes into drafting an opinion for a court - even a unanimous one. It can take dozens of drafts, and some of the revisions will require additional legal research. The process often takes months for normal cases.

They teach you, in law school, to make your headings work for you, and tell the reader exactly what's in the section.

This is what that looks like.

YEEEEE--OUCH!!

For the nonlawyers:
A standard of review can be thought of the standard for "how wrong can you be before we make you do it again."

Abuse of discretion is the most forgiving to the trial court; there are many others that are less forgiving.

The 3rd could have just said "abuse of discretion" and left it at that. Instead, the court tossed out what is basically "y'all really had nothing and all of us would have done exactly what the trial court did."

This is slightly different language than the trial court used, but the key thing here is that this is another example of "there are X reasons you could have lost and you lose for all of them."

And the 3rd is starting out by explaining that the judge got this exactly right - they're beginning by affirming the case for the reasons that the trial court gave.

The last paragraph is also noncomplementary to the Trump Clown Car. It translates basically as "you can't keep changing what you're asking for and expecting everyone to bend over backward. That's not fair."

I know a lot - most - of you weren't following me when I (and many other lawyers) were laughing about this issue just a few days ago. But this is rubbing salt into a very big wound that the Trump legal team inflicted on themselves.

The short version is that the Trump team just plain forgot that a Court of Appeal can affirm the denial of leave to amend for any reason that the District Court *could have* reached that conclusion, not just for the reason the District Court *did* reach that conclusion.

So the Trump team totally forgot to argue all the other reasons when they appealed - they just stuck to delay, and then kind of panicked and tried badly to fix stuff with a dumb filing when they realized that they had totally pantsed themselves.

It didn't work.

If you follow other lawyers who have discussed this case, you may have seen a lot of laughing about "Twiqbal."

That refers to the two cases, Twombly and Iqbal, cited in this paragraph. The reasons that there's been laughing are complex, but I think I can give you the basics:

Before last week, the last time Rudy Giuliani was in a courtroom was in the early 90s. A very large amount changed since then. Twiqbal was one of the biggest and most important changes.

And Rudy, whose continuing ed file really should be audited, didn't know about those changes.

The defense lawyers and all the judges were, on the other hand, very aware of the changes.

This is here, I suspect, mostly to make it (yet again) clear on the record that the President's team hasn't been claiming fraud.

I'd do "for the nonlawyers" explanations for some of this, but it looks like the 3rd might not need the help. Especially for the second one, which is just delightfully snarky.

The translation for this bit is: "you don't get more than one bite at the apple."

Courts don't like hearing the same complaints from the same people over and over; there are rules against that.

This will quite likely get cited - although it is nonprecedential - by the defendants in the Krankening cases that Sidney Powell brought late Wednesday.

Oh, and not only does Trump have no constitutional claim on that, they also tried and failed at the state level, so bye-bye on that.

This is dealing, very very briefly, with a whole lot of claims. Basically, no standing, no claims.

It's good that the equal protection argument here is getting more detailed treatment than some of the other arguments. This is one of the ones that the campaign has been raising everywhere, so it's good to see it dealt with in some depth.

As a lot of us have been saying, there are very few judges who are willing to disenfranchise entire states. It's not a thing courts have ever done and there are lots and lots of reasons not to do it.

They're also dealing with their Marks v Stinson precedent, pointing out the differences with this case.

There was near-zero chance that SCOTUS will do anything with this case except quietly decline to consider it and refuse any attempt at preliminary relief. This makes those odds go down even more.

I'm gonna file this under "adding insult to injury."

"Dear Rudy:
You lose right at the start because you can't follow even the most clear, simple, and basic rules."

"But your chronic and inexplicable ability to follow rules doesn't actually matter, because even if you had the minimal competence required to RTFM, you'd lose for all four of four other possible reasons you'd lose."

This is one of the most concise and succinct likelihood of success on the merits rulings I've seen. "These claims cannot succeed" really covers it all.

I love the use of quotes around "upon information and belief." It adds a delightful little note of disdain.

That's been one of the things that's been difficult for me to understand about the Trumpian litigation "strategy" - the way they started in the federal courts. They've been trying to make federal claims out of state law issues, which makes things harder for them, not simpler.

This is, in part, showing everyone where the bar is supposed to be for the kind of relief that these clowns want. "Compelling evidence of massive fraud." That's well beyond the "weak claims that fraud might have somehow been remotely possible" that the Campaign has made.

As a lot of lawyers have noted, there are very strong reasons for conservative judges to particularly dislike these cases. Federalism is one of those reasons.

I might be reading too much into this, but I think it's a subtle dig - a judicial subtweet, if you will - of Rudy's "Networks don't get to decide elections. Court's do" from the infamous Four Seasons Total Landscaping Press Catastrophe.

And, with a bit more judicial snark, the opinion comes to an end. ("Because the Campaign wants us to move as fast as possible, we also deny oral argument" is ABSOLUTELY snark; only the campaign, AFAIK, requested argument.

Final thoughts:
This was not the opinion the Trump Campaign was looking for. It was anything but. The Trump Campaign lost this case - for a second time - all of the ways they could have lost it.

This will make it much much less likely SCOTUS touches this case. I've got a few things to do, but I'll take that up in a separate thread later this afternoon. I'll link that thread here for your convenience when I do.

/fin

PS - I forgot to point this out at the start, my bad.

The judge who wrote this ruling, which was very uncomplimentary to Trump's legal team and their efforts, is the one judge on the panel that Trump appointed to the bench.

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