Appeals court rejects Trump campaign’s Pennsylvania lawsuit, setting up Supreme Court next

The president's campaign will continue pushing their legal fight toward the Supreme Court

The Trump 2020 campaign's legal team suffered another blow in court on Friday, as a federal appeals court in Philadelphia rejected the attorneys' effort to contest the results of the presidential election in Pennsylvania.

Judge Stephanos Bibas wrote on behalf of the three-judge panel that reviewed the appeal, "Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."

Trump's attorneys have vowed to appeal the case to the Supreme Court, despite the round dismissal from the appeals court.

Senior strategy adviser for the Trump campaign Steve Cortes told Just the News that "We will be appealing to the United States Supreme Court, which has always been where we wanted to end up. The sooner the better. We want to make these cases before the high court and we believe we have a compelling argument to make."

The case was argued last week by President Trump's personal lawyer Rudy Giuliani, who presented the case that the results of the election had been undermined by widespread voter fraud across Pennsylvania. But Giuliani offered little tangible evidence to fortify his claims.

All three of the judges on Friday's panel of 3rd U.S. Circuit Court judges were appointed by Republicans, including Judge Bibas who is a Trump appointee. Until 2019, President Trump's sister, Maryanne Trump Barry, sat on the court for two decades.

On Tuesday, the state of Pennsylvania certified its election results in favor of Joe Biden, who will officially receive the Keystone State's 20 electoral votes. Biden led Trump in Pennsylvania by about 80,000 votes.

Following Friday's ruling, senior Trump campaign attorney Jenna Ellis tweeted, "The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud. On to SCOTUS!"

Giuliani sure made a mess of it, not just as an advocate, but also as a manager. As DJT’s personal attorney, he should have prepared for this months BEFORE the election. Team Trump should have opposed each and every piece of proposed state legislation that sought to open up mail ballots. Any legislation that squeezed through DJT opposition should have been tested in state or Federal Court. Then, Team Trump should have coordinated legal teams in every state to prepare for the election.

All this should have been done MONTHS BEFORE the election. DJT knew about the issue, and was warning us as early as August.

DJT’s case filed in Federal District Court in PA was, in my opinion, the MOST IMPORTANT Federal District case in the history of this nation. At one point, DJT was represented by a solo-practice attorney specializing in custody and alimony cases.

Generally, SCOTUS reviews the record on appeal. I don’t know if there is any precedent for SCOTUS to accept new factual evidence or legal arguments on appeal.

The basic principle is that Federal Courts adjudicate actual cases or controversies that are brought in front of them. They don’t go out looking for dragons to slay, otherwise, they would not be adjudicating Federal questions, they would be legislating new law, which is strictly reserved for Congress.

My thoughts are that a new lawsuit, with new litigants, alleging pages and pages of actual facts, identifying witnesses, times, and places, should be filed by a new, competent attorney. Maybe the lawsuits filed by Sidney Powell will do the trick. Let’s wait and pray.

Bascially, the lawsuit was brought by the Trump campaign and two individual Pennsylvania voters. The lawsuit focuses on two things: First, that some counties, but not others, notified mail-in voters of problems with their ballots and allowed them to “cure” those problems so their votes would could. Second, that poll-watchers were excluded from observing counts.

Then, after the original lawyers withdrew, the plaintiffs amended their complaint to remove all of the claims relating to poll watchers, leaving only two claims, both relating to the “ballot curing” issue. One claim alleged that this violated the Equal Protection Clause of the 14th Amendment, because it discriminated between voters in different counties (the individual voter plaintiffs had their ballots invalidated and were not in counties that provided notice and an opportunity to cure). The other claim alleged that counties or the Secretary of State allowing voters to cure ballots violated the Electors and Elections Clauses of Articles I and II of the Constitution because the PA state legislature did not authorize such a procedure.

The district court judge dismissed the ballot curing claims under Rule 12(b)(6) for failure to state a claim, finding that neither the voters nor the campaign had standing. A recent 3rd Circuit case held that only a state legislature has standing to assert a violation of the Electors and Elections Clauses, and the plaintiffs conceded that its claims under these clauses were precluded under that 3rd Circuit case (but want to preserve the right to argue to SCOTUS that the 3rd Circuit is wrong). The judge also held that neither the voters nor the campaign alleged facts showing they had suffered a legal injury granting them standing to bring the Equal Protection claim.

The campaign had also moved for leave to amend their complaints again to add some of the poll watcher claims back in. The judge denied that motion when he dismissed the ballot curing claims.

In this appeal, the Campaign did NOT appeal the dismissal of the ballot curing claims for lack of standing. It only appealed the denial of leave to amend its complaint. The 3rd Circuit just affirmed Judge Brann’s rulings. It held that Judge Brann did not abuse his discretion in denying leave to amend its complaint to add the poll watcher claims because the campaign unduly delayed in doing so and because adding them in would be futile because the proposed second amended complaint failed to plead facts showing a plausible claim.

I don’t think it’s fair to single out Giuliani, because he was never lead counsel in this case, but it certainly does look like there was incompetence involved. Basically, they sued based on Claim A and Claim B, then voluntarily dropped Claim A, then tried to add Claim A in when it was clear Claim B was going to be dismissed. Then they didn’t appeal the dismissal of Claim B, just the denial of leave to add Claim A in—which is reviewed on appeal by a much more deferential standard. I think the legal term for the conduct of the Campaign’s lawyers in this case is “a shit show.”

Oh, I blame Giuliani.

As early as August, DJT was warning us about the dangers of mail ballots. As DJT’s personal attorney, Giuliani should have started work on this months BEFORE the election.

All political pressure should have been brought against state legislatures (particularly swing states) seeking to relax vote by mail.

Any state legislation that passed should have been challenged in Fed and state court.

The repulsive RINO Repug McConnell should have been pressured to pass uniform, Federal election fraud legislation.

A month before the election, teams of skilled lawyers should have been assembled in each contested state.

Despite DJT’s unambiguous warnings, Giuliani was caught totally off guard. At one point, DJT’s attorney in PA Fed Court was a solo-practice attorney whose specialty was custody and alimony cases. God bless her, she was clearly in over her head.

A lead attorney has to be not just a seasoned litigator, but a brilliant manager and strategist.

Giuliani ... well ... he comes up short. Way short.

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