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President Trump Wanted a Supreme Court Election Battle. His Current Appeal Simply Cannot Get Him There.


Attorney for the President, Rudy Giuliani, speaks at a news conference in the parking lot of a landscaping company on November 7, 2020 in Philadelphia.

Stung by a scorching federal ruling rejecting their “Frankenstein’s Monster” legal theories, the Trump campaign’s legal team unveiled appellate papers to revive their addled effort to overturn the Pennsylvania election results. The recent submissions to the U.S. Court of Appeals for the Third Circuit were both confusing and deeply flawed. Instead of carving a path for President Donald Trump to bring his appeal directly to the Supreme Court of the United States, it essentially ensured that his case would stall for the foreseeable future.

The campaign, in characteristic shoot-first-then-aim style, quickly filed an amended motion for expedited review on Monday, apparently reflecting dissatisfaction with their initial filing on Sunday. This hiccup was all the more remarkable considering the nature of their requested relief: another chance at getting its paperwork right in the lower court.

For now, the Trump campaign only challenges one part of U.S. District Judge Matthew Brann’s Saturday ruling, the denial permission to file a second amended complaint. It is easy to see why the Trump team wants a third try. Rudy Giuliani’s disastrous lawyering walked back most of their initial allegations and botched basic procedure: He signed the judge’s name, while neglecting to sign his own.

In his earlier ruling, Judge Brann explained:

“Defendants’ motions to dismiss the First Amended Complaint are granted with prejudice. Leave to amend is denied. “Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” Given that: (1) Plaintiffs have already amended once as of right; (2) Plaintiffs seek to amend simply in order to effectively reinstate their initial complaint and claims; and (3) the deadline for counties in Pennsylvania to certify their election results to Secretary Boockvar is November 23, 2020, amendment would unduly delay resolution of the issues. This is especially true because the Court would need to implement a new briefing schedule, conduct a second oral argument, and then decide the issues.”

The campaign made a motion to request an expedited appeal of that ruling, but then amended its motion; the second try at the motion to expedite wasn’t much better than its second try at filing the complaint. The amended version of the motion, which purported to “clarify” the Motion for Expedited Review, perplexingly included this paragraph [emphasis ours]:

However, Appellants do not believe that this is a “case or controversy” over the aspect of the Order dated November 21, 2020 dismissing the Amended Complaint because they do not intend to prosecute it, and, instead, seek to prosecute the Second Amended Complaint, as they informed the Court on November 17.

Generally, plaintiffs don’t tell courts that they don’t have a “case or controversy” for the court to decide. It’s possible that this garbled “prosecution” language was the Trump lawyers’ attempt to focus the court’s attention on the accuracy of the Second Amended Complaint (rather that the first one)—but this sure was a weird way to do it.

What was even weirder, though, was that Trump’s lawyer opted not to appeal the substance of Judge Brann’s decision—but rather to focus only on his refusal to allow a repeat filing of the Complaint. Certainly, Trump could have appealed both the dismissal of the case as well as the refusal to allow another amended filing. And while an appellate court might be willing to give an in-depth review of a dismissal, it’s unlikely that it would second-guess a trial judge’s ruling on a routine procedural matter like permission to file multiple versions of a complaint.

Predictably, Legal twitter was also baffled by this glaring error.

Given that Trump’s lawyers have repeatedly vowed to get the case before SCOTUS quickly, this choice makes absolutely no sense. The mechanism to get such an appeal before SCOTUS would be to request an injunction at the lower court level, and then appeal on all possible grounds if the injunction were denied.

Trump didn’t do that. Perhaps, as some have suggested, it’s because his legal team is new at this.

Errors and the utterly bizarre aside, the Third Circuit okayed Trump’s motion for an expedited review on the issue of filing a Second Amended Complaint. The court ordered lawyers for Trump to submit their brief on or before Monday at 4 p.m.; Pennsylvania’s Secretary of State Kathy Boockvar (D) must file her brief on or before Tuesday at 4 p.m. The court may also consider allowing oral arguments.

While the Third Circuit’s ruling in favor of Trump may appear to be a procedural victory, the campaign’s failure to request an injunction at this time means that the case will be so narrow as to preclude immediate SCOTUS involvement.

[image via Bryan R. Smith/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos