LIVEBLOG: Rudy Giuliani Brings The Crazy To A Federal Court In Pennsylvania
We got onto the call! And assuming no technical difficulties, we'll be bringing you a live recap of all the crazy shenanigans in US District Judge Matthew Brann's courtroom.
The Trump campaign has cycled through three sets of lawyers since filing this stupid case on November 9 to overturn the will of Pennsylvania voters, and this morning Rudy Giuliani entered his appearance on behalf of President Sore Loserpants.
Here's our recap of the case. Long story short, they started off arguing that the Secretary of the Commonwealth Kathy Boockvar violated Pennsylvania election law by excluding Republican poll watchers from the count (despite their own lawyer admitting in court that Republicans were indeed in the room) and so the court had to throw out all votes from Philly and Pittsburgh. That part of the case has largely gone away, and all that's left is a bizarro claim that counties which allowed mail-in voters who botched their ballots to cast provisional ballots in-person somehow deprived voters from other counties of their Equal Protection rights.
Yeah, it's real dumb. The secretary of state encouraged all county elections officials to do just that. The fact that some of them failed to do it doesn't make it illegal.
Okay, strap in kids. Time for a ride to CRAZYTOWN, PA!
1:25 Look who's here ...
1:35 Nothing happening yet, but the hold music for this hearing in the Middle District of Pennsylvania is a bop! (Slight exaggeration.)
1:45 Still waiting for the hearing to start. But Michael Schmidt and Maggie Haberman report that Rudy Giuliani was looking to get paid a whopping $20,000/day for his legal services.
Roodles strenuously denies it.
"I never asked for $20,000," said Mr. Giuliani, saying the president volunteered to make sure he was paid after the cases concluded. "The arrangement is, we'll work it out at the end."
He added that whoever had said he made the $20,000-a-day request "is a liar, a complete liar."
Previously Giuliani described himself as working for nothing — which is about what we'd budget were we hiring America's Mayor. But the unpaid gig did come with the prestige of access to the American president, which can help attract lots of paying clients. Is our Rudy looking to get paid now that he's about to lose his access to the Justice Department? Hmmmmmmm.
1:50 Ooooh, ooooh here we go!
1:54 Attorneys introducing themselves. Counsel for Secretary of Commonwealth and defendant counties make up a high-powered roster: Kirkland & Ellis, Ballard Spahr, Wilmer Hale, Perkins Coie, etc. On the Plaintiff's side, Rudy and a talkshow host. So this should go well.
1:57 Forgot to say that Rudy was bitching before about having to wear a mask when he wasn't speaking because it fogs up his glasses. Judge Matthew Brann was like WHAT. EVER.
2:00 Giuiliani is about to present the plaintiff's case. Oh, boy!
"The best description of this situation is a widespread, nationwide voter fraud, of which this is a part," Rudy begins.
This would not be a particularized allegation of fraud. And BTW, they're not alleging fraud in the complaint, they're alleging a violation of equal protection. So, great start!
2:02 A generalized broadside against vote by mail? Does Giuliani think this is OANN? That's not admissible evidence.
"Mayor Daley of Chicago?" DRINK.
Rudy Giuliani is accusing Democratic cities of "holding back votes" to ensure they can put Democrats over the top. This ignores the reality that the Republican legislature forced the late counting of mail-in ballots, and if they'd been counted beforehand, we'd have known that Biden won Pennsylvania on election night.
2:04 He's going to shit all over Black cities, cool cool. Milwaukee! Detroit! Philadelphia! If the glove does not fit, you must acquit!
2:06 Can I just remind everyone again that the only live allegation in this complaint is that allowing mail-in voters to cast provisional ballots in person to cure defective ballots violates the Equal Protection Clause? There is absolutely no fraud alleged in the complaint.
Shouting "You'd have to be a fool to think this was an accident!" is NOT EVIDENCE. And it's not relevant.
2:10 Okay, now Rudy is on to the defective ballot issue. He's talking about a specific voter from a red county who failed to use the inner "security envelope" and thus his vote didn't count. Rudy says that in Philadelphia and Pittsburgh the Secretary of Commonwealth told elections officials that voters who botched their ballots should be given an opportunity to vote in-person. In reality, she told all elections officials to allow this, but Giuliani describes this as a "classic violation of Equal Protection."
In Rudy Math, that means that "thousands of voters, perhaps hundreds of thousands" were deprived of their votes — he's counting the voters who had defective ballots rejected, not the voters who supposedly were allowed to repair them.
2:13 "We have twice as much evidence this week. And it's not just here, it's nationwide."
Spoiler Alert: Clark County, Nevada has ZERO to do with a case in Pennsylvania. It can't be used as evidence to establish standing.
2:15 "The illegal ballots have been counted!" Rudy blarps. Literally nothing about these million ballots was illegal. Rudy is just lying some more that there were no Republicans allowed to observe the tabulation.
Rudy is now doing improv with evil cackles impersonating dastardly Democrat machine operatives excluding Republicans from the vote count.
He's going on an extended rant about corrupt Democrats. This would not be evidence of fraud in this case.
2:20 Rudy says "not all Democrats are corrupt," so the evil Democrat machine had to exclude Democratic poll watchers as well as Republicans. His solution would be to cancel all the ballots.
"These votes are way more than enough to overturn the election! We have ten times more votes than we need!"
Sure they do, if only the judge will allow them to discard all the votes in Philly and Pittsburgh.
2:25 Giuliani is entering photos into evidence of poll watchers not being allowed to stand on top of ballot counters. A woman in the photo is holding binoculars, heh heh.
"They're standing here like potted plants!"
[Edit: This is not an evidentiary hearing, it's a hearing on a motion to dismiss. The Judge is humoring him.]
2:27 Just to reiterate, the Trump campaign has already dropped everything from its complaint about the lack of ballot access. Exactly none of this is relevant.
2:30 Attorney Dan Donovan up for the Defendants. He's a highly, highly competent lawyer. Unlike Roodles, he will not be winging.
Donovan says HELLO, THE VOTE ACCESS CLAIMS ARE ALL GONE. All that's left is the Equal Protection stuff.
2:34 Donovan points out that there is no claim of fraud in the complaint. The only issue is that some qualified voters had their votes counted. And the remedy the Trump campaign seeks is to have over 1 million ballots thrown out.
Well, when you put it like that.
2:37 The first issue the Defendant's entirely capable counsel will address is standing. You have to allege "particularized" injury to be able to bring a case, that is you have to explain how you, yourself were harmed to be able to sue. And, as the Third Circuit held just this weekend, "vote dilution" — that is devaluing any individual vote by improperly counting someone else's vote improperly — doesn't confer standing. Not on an individual voter, not on a candidate.
Here's the language from that case:
The Voter Plaintiffs lack standing to redress their alleged vote dilution because that alleged injury is not concrete as to votes counted under the Deadline Extension, nor is it particularized for Article III purposes as to votes counted under the Deadline Extension or the Presumption of Timeliness.
2:45 Donovan points out that the individual voters suing here could have sued their own counties for failing to provide them opportunity to cure defective mail-in ballots. He also points out that all the numbers Rudy threw out in his pre(r)amble came right out of his ass — they're nowhere in the complaint.
2:46 Donovan notes that the Trump campaign hasn't pointed to a single "cured" ballot in Philadelphia, much less enough that it would affect the results of the election where Biden is 67,000 votes ahead — "It's just speculation."
2:48 We're done with standing, as Donovan urges the court to dismiss on standing alone.
AND THE FEED JUST CUT OUT.
2:52 Okay, I'll keep trying to dial in and feed you guys tweets for the moment.
2:54 And apparently the line is dead for everyone.
3:06 Still nothing. But they're working "feverishly" to fix it.
3:10 Apparently they've paused the hearing until the line gets fixed.
Judge Matthew Brann says the PA Supreme Court just ruled, 5-2, that Philadelphia acted within state law in its hand… https://t.co/rnU02JDdZr— Josh Gerstein (@Josh Gerstein) 1605643504.0
3:30 No progress, and I'm having trouble finding the case itself. But, to clarify the import of the Pennsylvania Supreme Court decision, they just stomped hard on all of Rudy's bullshit about the election being stolen because the ballot observers were too far away to meaningfully observe.
3:40 Okay, here's the opinion. The Pennsylvania Supreme Court says that the trial judge was wrong to impose specific distance requirements for poll workers, since the legislature left that to the individual counties' discretion.
Rather, we deem the absence of proximity parameters to reflect the legislature's deliberate choice to leave such matters to the informed discretion of county boards of elections who are empowered by Section 2642(f) of the Election Code "[t]o make and issue such rules, regulations and instructions, not inconsistent with law, as they may deem necessary for the guidance of . . . elections officers." 25 P.S. § 2642(f). In the case at bar, the Board promulgated regulations governing the locations in which authorized representatives were permitted to stand and move about while observing the pre-canvassing and canvassing process. The Board's averments that it fashioned these rules based on its careful consideration of how it could best protect the security and privacy of voters' ballots, as well as safeguard its employees and others who would be present during a pandemic for the pre-canvassing and canvassing process, while, at the same time, ensuring that the ballots would be counted in the most expeditious manner possible, were undisputed by the Campaign. We discern no basis for the Commonwealth Court to have invalidated these rules and impose arbitrary distance requirements.
Not only is Rudy's argument that the observers were illegally excluded because they weren't allowed to spew covid germs all over poll workers invalid, but his argument that Philadelphia ignored the court order to let them stand closer just went up in flames, too. So much for preserving this issue for the appeal.
3:50 BREAKING! I got back on the line. So maybe they'll start the hearing again if Rudy's finished tucking his shirt in and praising himself on Twitter.
During the break, Giuliani opens twitter. https://t.co/iZMIz8NGwu— southpaw (@southpaw) 1605643961.0
3:53 Listening to the AT&T operator do customer service with the clerk of the court. No hurry, here, just the future of the free world.
lily tomlin GIFGiphy
4:00 AND WE'RE BACK! Let's talk Equal Protection!
4:05 Donovan is talking about a recent federal decision which is also captioned Donald J. Trump for President, Inc. v. Boockvar — she gets sued A LOT —holding that different voting ruled between counties DOES NOT violated Equal Protection.
Reminder: The only remaining claim in the Trump case is that allowing voters to cure defective mail-in ballots in some counties and not others violates Equal Protection.
"This should be dismissed today as a matter of law," Donovan argues.
4:07 Attorney Mark Aronchick, representing the county boards of elections, is up to address "the abstention issue," i.e. whether the federal court must abstain from hearing the case if it would infringe on the jurisdiction of another (state) court.
4:11 Oooh, Aronchick bringing the YOU'RE NO JACK KENNEDY!
"I don't think Mr. Giuliani has even read Judge Rogers argument or understood it."
The sound is horrible, but it's entirely clear that Pennsylvania elections officials are DONE with Rudy and Trump's bullshit lies and garbage lawsuits.
"Mr. Giuliani's talking about another case! It's a fantasy world!"
4:16 An obviously furious Aronchick points out that courts have already blessed different vote access levels between counties by saying that not every county had to have the same number of ballot drop boxes. If that wasn't a violation of Equal Protection, then allowing voters to fix their ballots isn't either.
The logical extension of Giuliani's argument is that the county with the lowest level of access would be able to set the rules for every other county.
4:18 MR. GIULIANI REMEMBERS LEARNING ABOUT STANDING IN LAW SCHOOL? REALLY? BEFORE THE EARTH COOLED?
Aronchick is big mad that Giuliani called poll workers "mafia."
4:20 As a person who has spent the past four years writing about the Trump administration's full frontal attack on the rule of law, may I say that Mark Aronchick is my spirit animal.
Going Crazy Will Ferrell GIFGiphy
4:22 Aronchick makes the point that Secretary Boockvar told all the counties to let their voters fix botched ballots. He says he feels bad for the named plaintiffs (two voters whose mail-in ballots were rejected), but maybe they should sue their own counties for not telling them they could cure their votes.
Moreover, this is a problem created by the Republican-controlled legislature, which ensured that ballots couldn't be reviewed until election day. In lots of states, election officials review ballots as they come in and will inform voters if their ballot has not been accepted so they can fix it or vote in-person.
4:27 Aronchick points out that the Trump campaign has no proof that the Trump lost votes because his voters live in counties who were not given an opportunity to cure ballots, particularly since the vast majority of mail-ballots were cast by Democrats after the president himself encouraged Republicans to cast their ballots in person.
4:31 Aronchick says Giuliani's attempt to get a million votes thrown out is "disgraceful."
He ain't wrong!
"I'm not going outside the complaint. I'm not Mr. Giuliani. I'm staying in the complaint."
Petty AF, and we are here for it.
4:35 Aronchick says they're arguing about 8,000 votes in Philadelphia, not enough to eat into Biden's lead.
To be entirely fair, a rational legal strategy for Trump would be to chisel away a few thousand votes here and there to get Biden's margin down to 0.5 percent, which is (I believe) the threshold to force a recount. If Trump had someone who wasn't a total loon repping him, he would quit screwing around trying to disenfranchise the two biggest cities in Pennsylvania and pile up small victories to drive down the margin. And if a frog had wings, he wouldn't bump his ass a-hoppin'.
4:40 Aronchick spluttering about Giuliani's lack of evidence: "I don't even know where to start."
4:45 WTF does Nevada have to do with absentee ballots in PA?
OMG, Aronchick just said Rudy is a low-rent Jill Stein! But like 25 percent more crazy. (He didn't say that second part. But it's true.)
This is in re an argument that the Trump campaign argued four years ago that these cases didn't belong in federal court.
4:47 LOL, not that Judge Brann is suggesting that Aronchick needs to calm the hell down. No, no! All he's saying is that the court might have an easier time hearing and understanding the attorney if he would stop, umm, moving so much.
4:50 "Dismiss this case," begs Aronchick. "Please, dismiss this case so we can move on the real issues of this country."
He likens the Pennsylvania suit to the Trump campaign's white whale.
And now 10 MINUTE RECESS. Drink!
4:55 Not to interrupt your cocktail, but it appears Mr. Giuliani may have made a wee tiny fib on his admission to appear for the court pro hac vice (that is, without being a member of the bar in the jurisdiction.)
Here is a screenshot of the DC Bar's membership listing web page for Giuliani: https://t.co/ngPzkCYF7m— Benjamin Wittes (@Benjamin Wittes) 1605628836.0
I wrote about it here for Above the Law.
5:10 WE'RE BACK! Attorney Elizabeth Dupuis appearing for Centre County, and she is also pissed at Rudy!
She's not here for some hearsay affidavit accusing her county of improperly forcing someone to vote provisionally in one of its dozens of precincts.
5:15 Appearing for the DNC, Uzoma Nkwonta of Perkins Coie points out two evidentiary problems. First, the individual plaintiffs are trying to sue counties where they don't even live, so they have no information on election procedures there. Second, the Trump campaign has never argued that the total number of "cured" ballots exceeds Biden's margin of victory.
That's relevant because emergency relief requires proof of imminent harm.
5:18 Nkwonta points out that the Trump campaign has never alleged deliberate fraud in any of the bajillion other cases they've filed — perhaps because no attorney was willing to make unsubstantiated allegations on the record. No attorney until Rudy Giuliani, that is.
5:22 NAACP attorney appears to argue that the plaintiffs had an affirmative argument to challenge voting procedures before the election. They can't sleep on their rights and then say, "whoops, guess we have to toss out a million votes." And since Secretary Bookvar told all the counties to let voters cure defective ballots, and it was a full week before they filed the suit.
Which reminds me of this hinky shit the Trump campaign is trying to pull by saying that Judge Ranjan said curing was not allowed. In reality, what he said was it wasn't required.
How to get yourself sanctioned in Federal Court, a 3 part story. Law students: Don't do this. Never, ever do this.… https://t.co/RKmFvBdlUz— Akiva Cohen (@Akiva Cohen) 1605529193.0
I wrote about it on election day here.
5:30 Judge Brann is questioning attorney Linda Kerns, even though she already moved to withdraw her appearance. And the first question is a doozy. He wants to know how the remedy for a handful of defective ballots can be to throw out upwards of a million, legally cast ballots.
"Can you tell me how this result can possibly be justified?"
5:32 And Rudy is answering for her because REASONS.
His answer is to make wild accusations about widespread fraud by Democrats with mail-in ballots which are seen as "inherently fraudulent." He's still trying to fuck that chicken, despite the fact that the Pennsylvania Supreme Court just said the Republicans were not excluded from ballot inspections.
"As far as we're concerned, your honor, those ballots could be for Mickey Mouse!"
5:35 He's accusing poll workers of not inspecting signatures. "Put it in a bin! Put it in a bin! Put it in a bin!"
Now he's making some crazy noise about "the law is clear you can't cure a ballot." Ipso facto propter hoc the plaintiffs who botched their votes actually had their votes STOLEN by the counties which allowed other voters to cure their ballots.
Spoiler Alert: That is not the law, there is a procedure for ballot cure in Pennsylvania statute.
5:40 Rudy is very upset that the defendants' lawyers said he's making shit up.
Lawyer GIF by memecandyGiphy
5:40 Kerns has jumped in to try to save Rudy from himself. She's trying to narrow the issue to just escaping a motion to dismiss and preventing the certification of the vote. But Giuliani has now rejected the lifeline, diving back in to make the same Due Process argument which was already deleted from the Trump campaign's complaint.
5:45 Judge: You're not alleging fraud?
Giuliani: Wrong! We're alleging it!
Judge: But you're not asking me to give you any remedy for the fraud.
Giuliani: Oh, but we still talked about it in the complaint!
Judge: But you're not asking me to do anything about it? Does the amended complaint plead fraud with particularity?
Giuliani: No, your honor. It's a nationwide scheme, and that's worse.
5:47 Judge: Why didn't you sue the counties that refused to allow the voter plaintiffs the right to cure their defective ballots?
Kerns: Forget state law. It's CONSTITUTION!
Hey, funny story about Linda Kerns. She once tried to block a hospitalized voter from getting an emergency ballot.
5:51 The Judge wants to know how it's Secretary Boockvar's fault that some counties allowed for ballot cure and some didn't. Kerns says that she's to blame because she put out guidance on ballot cure.
You go to war with the army you have, I guess.
5:56 The Judge wants to know whether the Trump campaign is making its own Equal Protection claim, or just riding on the plaintiffs' coattails. Kerns makes a lot of words that basically add up to "no." (Remember the Equal Protection claim is the only one left.)
The Judge then asks why the campaign needs to assert the rights of individual voters if they're able to assert their own claims. Kerns goes to answer, but Rudy jumps right in. DOH!
Rudy makes a whole bunch of bullshit words, to which the Judge, who is actually from Pennsylvania, responds that Fayette County where Rudy claims Trump lost votes is actually traditionally pretty Democratic. So not allowing voters there to cure ballots may not hurt Trump.
6:05 There was just a long colloquy over whether "comparative standing" was the only ground for the Trump campaign's access to the court. The Judge asked for a precedent, and someone on Giuliani's team — because you know Rudy wasn't doing that research — produced this case. I don't see how it's relevant, but I'm not a great legal mind like Rudy Giuliani.
6:10 Giuliani is currently freestyling about illegal ballot cures, which is a thing he just made up.
Donovan just jumped up to note that the case Giuliani just offered has fuck-all to do with the case at hand and that offering guidance is Secretary Boockvar's IRL job, assholes.
But he didn't make swears.
6:15 This is painful. The Judge is trying to parse out how letting other voters cure their ballot burdened the right of the plaintiffs to vote. Giuliani isn't so much for specific, fact-based legal reasoning.
6:15 The court is trying to determine whether a strict scrutiny or rational basis standard should be used to evaluate whether Boockvar violated the plaintiffs' rights.
Giuliani says it's only rational to impose one standard across the state.
If you went to law school, you know why that's funny. But even if you didn't, that's just hilariously wrong.
6:20 Donovan, who's not just making shit up as he goes along, argues that the standard of review is "rational basis." In layman's terms, this is a question of how to evaluate the state's action. Is it effectively discriminatory, so the court gives it a good, hard look, or does the state have a rational basis for action, so courts probably won't jump in?
Rudy is treating these as if they're vernacular, not legal terms.
6:25 We're now having a discussion about various abstention doctrines, which lay out when federal courts are supposed to abstain from intervening to allow state courts to work it out first.
6:30 Aronchick points out that its perfectly legal to spoil an absentee ballot and vote provisionally, so Giuliani was talking out his ass. With all due respect.
6:30 Thank the Lord, we're almost done. The Judge is trying to make it clear to Giuliani that he has until 5:30 tomorrow to file a motion in opposition to the defendants' motion to dismiss. Rudy seems to be having trouble following this concept. AHEM.
Then the defense will have another day to respond.
The Judge strongly suggests that the plaintiffs file a new motion for preliminary injunction, and if they're going to do it, do it by tomorrow.
Basically he wants all the dueling motions done by Friday.
6:35 Rudy is very hot to file a Third Amended Complaint so he can put all the gobbledygook back in about the excluded poll watchers. He seems not to understand that he has to ask the court's permission to file another brief. Rudy says he'll attach it to motion asking permission.
6:40 Remember Linda Kerns filed a motion demanding sanctions because a Kirkland & Ellis associate (not a lawyer working on the case representing the Commonwealth) left her a nasty voicemail? The Judge said it was bad form and the associate should be told that he's wasted the time of a very busy federal judge, which is BAD.
"You can convey my disdain back to your man."
No sanctions, whiner.
6:45 OMG, Kerns is continuing to fucking whinge about it. Let it go, lady! She's blubbering about Donovan's "smugness" and "insincere apology."
6:52 Okay, we're on to dinner plans and how the judge wishes the lawyers would just go get a meal together and settle it. Enough already.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.