President Donald Trump’s campaign filed a brief in federal appellate court Monday afternoon castigating a lower court and blaming their former attorney for various self-inflicted mishaps, mistakes and missed opportunities.
The filing, fashioned as an opening brief which requests a preliminary injunction or temporary restraining order (TRO), offers a decidedly extreme form of relief for the Republican Party plaintiffs: tossing out some one million votes for Democratic President-elect Joe Biden.
As Law&Crime previously reported, the 45th president’s legal team was given a 4 p.m. EST deadline to submit an expedited appeal based on their desire to file a second amended complaint with the U.S. District Court for the Middle District of Pennsylvania–which previously denied the campaign’s efforts to file by dismissing their case with prejudice in a caustic opinion and order over the weekend.
To hear Trump and his newest attorneys tell it, U.S. District Judge Matthew Brann, a onetime member of the Federalist Society, committed reversible error when he denied the campaign leave to file their amended complaint in that ruling which determined the president’s legal team made “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”
The appeal makes several excuses for why that original complaint was so bad it resulted in the case being laughed out of federal court.
First on the chopping block is now-former Trump campaign attorney Linda Kerns.
“Following the filing of the [original] complaint, the Trump campaign’s longtime, main counsel, Porter Wright Morris & Arthur LLP, received threats of violence and economic retaliation and withdrew,” the appeal notes. “The campaign’s remaining attorney, Linda Kerns, a sole practitioner, received a threatening telephone call from opposing counsel, Kirkland & Ellis. Rather than oppose the motions to dismiss, she filed the [first amended complaint] which incorrectly omitted numerous allegations and counts.”
A motion to amend the complaint was then filed by attorneys Rudy Giuliani and Marc Scaringi. The proposed “Second Amendment Complaint,” which came after Giuliani’s unforgettable appearance in federal court, didn’t go anywhere.
The campaign’s appeal outlines what they hope to accomplish from here:
Plaintiffs believe that these allegations and better pleading cures any deficiencies which the court found in the amended complaint. Plaintiffs are not asking this court to rule on the merits of the motion to amend – to the extent [the Pennsylvania defendants] assert futility, either on its own or based on the decision dismissing the [first amended complaint] (over which Plaintiffs believe there may be no “case or controversy” because they do not intend to prosecute it), it is the district court’s role to resolve these issues in the first instance.
Appellate lawyer Raffi Melkonian explained the upshot here:
This confirms my previous tweet. Note, this is their only shot on appeal. There’s not like, some other brief where they can challenge the trial judge’s decision on the First Amended Complaint. By filing this brief, they are done on that. pic.twitter.com/n8qKPaVnnX
— Raffi Melkonian (@RMFifthCircuit) November 23, 2020
But the major problem in procedural terms, according to the brief, was Brann’s effective refusal to allow the Trump campaign an opportunity to document their additional allegations and grievances in that would-be second amended complaint.
“The district court abused its discretion in denying the motion to amend for numerous reasons,” the appeal argued. “This prevents the [Trump] campaign from litigating its serious and well-founded claims that Defendants – Secretary [of State Kathy] Boockvar, and seven County Boards of Elections controlled by Democrats – engaged in a partisan scheme to favor Biden over Trump by counting potentially tens of thousands of defective mail ballots.”
The basis for those complaints of fraud is a familiar refrain for anyone who has kept track of Trump’s efforts to dispute the Keystone State so far: the issue of ballot canvassing observers.
The filing reiterated those accusations as follows:
Contrary to historical practice in Pennsylvania, observation of the canvassing of mail ballots was prevented in order to conceal that defective ballots – i.e., ballots that did not comply with Pennsylvania’s signature, dating, and other requirements – were being opened, mixed, and counted because Defendants knew that these ballots would overwhelmingly favor Biden over Trump.
“In other words, [Democrats] deliberately counted defective mail ballots because they knew the results would benefit their favored candidate, Biden, in violation of Equal Protection and Due Process under the Civil Rights Act,” the brief continues–making a substantial leap in the logic contained in each of those charges.
The appellate brief went out of its way to argue Judge Brann got things wrong when he excoriated Trump’s attorneys for trying to disenfranchise several million Pennsylvanians.
“The court also misconstrued the remedy sought, which may have affected its view of amendment,” the filing says. “The campaign is not seeking to disenfranchise 6.8 million Pennsylvanian voters. Instead, it only seeks to set aside the defective ballots among the 1.5 million cast in the defendant counties. The campaign seeks to examine a sample of the mail ballots to determine the defective percentage of ballots among the 1.5 million, which should then be deducted from Biden’s vote total.”
That suggestion was panned by legal experts:
“We’re trying to disenfranchise up to 1.5 million people, not 6 million” is not the ace they think it is. pic.twitter.com/2iTyUghDJu
— Raffi Melkonian (@RMFifthCircuit) November 23, 2020
Key point: the Trump brief says it is not trying to disenfranchise 6.8 million PA voters, “just” throw out about 70,000 votes. BUT it also asks ultimately for court to void election, and let PA legislature choose electors. That IS disenfranchising 6.8 million PA voters.
— Rick Hasen, Mr. Practicing Attorney (@rickhasen) November 23, 2020
Here’s where Trump made the broader request to disenfranchise Pennsylvania voters across the state by delaying certification:
In the proposed [second amended complaint], plaintiffs seek to prohibit defendants from certifying results of the 2020 Presidential general election in Pennsylvania on a statewide basis, including certifying results that include tabulation of unauthorized votes, including mail ballots which did not meet the statutory requirements, mail ballots which were cured without authorization, and any other vote cast in violation of law, and, instead, compel defendants to certify the election based solely on legal votes.
In a separate court document outlining the extent of the relief being requested from the appellate court–a TRO or preliminary injunction–the Trump campaign largely repeated the arguments in their appeal.
“Extensive evidence exists that Defendants mis-administered the 2020 Presidential Election in such a disastrous manner that they violated the Equal Protection Clause and structural guarantees of our Constitution in order to favor Biden over Trump,” the TRO brief alleged. “And Defendants blocked Plaintiffs’ attempts to meaningfully observe and document their actions at almost every turn.”
“This mal-administration reached the point of patent and fundamental unfairness and evidences an intentional attempt by Defendants to jeopardize both the ability of Pennsylvanians to select their leaders and the constitutional rights of all Plaintiffs,” the second brief continued. “This courts hould stay the vote certification pending this appeal, otherwise Plaintiffs may be without a way to remedy the severe, innumerable constitutional violations.”
Notably, and perhaps fatally for the Trump campaign, the two briefs confused what a moving party is actually entitled to on appeal with what they were originally requesting from the district court–stopping the certification of Pennsylvania’s electoral votes.
In other words, their proposed solution for Judge Brann’s allegedly improper denial is for the Third Circuit Court of Appeals to issue a restraining order barring that certification–a request the district court was never exposed to in the first place.
Again, legal experts scratched their heads at the effort.
University of California, Irvine Law Professor Rick Hasen described the incongruity here as “bizarre” and then explained why that was the case.
They are trying to get a TRO asking to delay certification based on a complaint that the district court did not even accept for filing. And in their separate brief, they don’t ask for 3rd circuit to order district to file, just to consider it. /3
— Rick Hasen, Mr. Practicing Attorney (@rickhasen) November 23, 2020
And the remedy is super strange too. They want an order that prevents the legal “effect” of certification. If the results are certified by the governor, nothing happens until the electors meet on Dec. 8. So what would this order even do? Bizarre. 5/5
— Rick Hasen, Mr. Practicing Attorney (@rickhasen) November 23, 2020
One other point: their appeal is based on the Court’s denial of motion to amend. But the relief they want on this is to STOP THE CERTIFICATION. They’re asking for more than they could get from their appeal. That is… impossible. So no.
— Raffi Melkonian (@RMFifthCircuit) November 23, 2020
While all of this was going on, the transition was set in motion and President Trump claimed that his “case” would continue on “STRONGLY.”
[image via Drew Angerer/Getty Images]
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