Today on the menu: States are certifying their votes, and Trump’s legal team is in turmoil.
The 2020 Election Starts to Wind Down
Michigan and Pennsylvania are set to certify their election results today, and Nevada is scheduled to do the same tomorrow.
Saturday night, U.S. district judge Matthew W. Brann threw out the Trump campaign’s lawsuit seeking to prevent the certification of Pennsylvania’s vote tallies and to reject the vote tallies from Allegheny, Centre, Chester, Delaware, Philadelphia, Montgomery, and Northampton counties. Judge Brann concluded that the Trump campaign did not have standing to bring the case, failed to prove a violation of the equal-protection laws, and contended the campaign’s argument, “like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent.” Brann dismissed the case “with prejudice,” which sounds forceful or emphatic but legally means the case is dismissed permanently and cannot be resubmitted. Nonetheless, the decision was about as thorough and sweeping a rejection as a judge could possibly write. Our Andy McCarthy offers his legal assessment here.
If, for some reason, you think I am mischaracterizing Brann’s decision, you can read the judge’s decision here. There is a bit of legal-ese, but a lot of it is plain and strikingly blunt language, particularly in the introduction:
The Trump Campaign and the Individual Plaintiffs . . . seek to discard millions of votes legally cast by Pennsylvanians from all corners — from Greene County to Pike County, and everywhere in between. In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.
That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted. Therefore, I grant Defendants’ motions and dismiss Plaintiffs’ action with prejudice.
Trump’s lawyers, Rudy Giuliani and Jenna Ellis, contended the decision “turns out to help us,” because it would help get their case to the Supreme Court quicker; their next move is to try to get a hearing before the U.S. Court of Appeals.
If you suspected the arguments from the Trump campaign were rushed, haphazard, and sloppy, the judge’s ruling will further confirm those suspicions. One of the footnotes in Brann’s decision observes, “curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.” In other words, the Trump campaign sought to toss out the votes for president, but not the votes for lower offices, contending that the down-ticket votes were legal, but the presidential votes were illegal.
A few Trump fans dismissed Brann as an “Obama-appointed judge.” The authority of a judge’s ruling does not change depending upon which president appointed him, and Brann is rather unusual for an Obama judicial appointee, as he had a long history of working with his state Republican Party. Back during his confirmation hearing in 2012, Senator Dianne Feinstein asked Brann about ties to Republicans and to the state GOP:
FEINSTEIN: Senator Grassley pointed out that you have been a member of the leadership of the Pennsylvania Republican Party, and I think that is just fine. You were a member of the party’s Judicial Evaluation Panel, its Judicial Selection and Review Committee. You are a member of the Federalist Society–and I have voted for judges that are members of the Federalist Society–and the National Rifle Association. So you are a very active Republican, probably the most Republican judicial nominee from the Obama White House, I think. Could you please describe the nature of your work in the Pennsylvania Republican Party and Republican political campaigns and describe your work on the Judicial Evaluation Panel and how you believe–and you answered this question of Senator Grassley I thought to some extent. Can you, in fact, separate what has been strong political views and activism from your role as an impartial decisionmaker?
BRANN: Yes, well, let me try to answer those questions in order, Senator Feinstein, if I may. I became involved and interested in Republican politics when I came out of law school, and I was interested even then, even in college. And my views are basically conservative views, I think. And when I came back to my rural county, I was invited to be involved in Republican politics, served on the county committee, and then that eventually evolved into being involved in the State committee roles and activities. And I just enjoyed it. I enjoyed meeting people there.
Brann was unanimously confirmed in the Senate by voice vote — meaning he was such an uncontroversial nominee, no one even asked for a recorded vote.
On a regular basis, Trump’s legal team continues to assert blatantly false claims that are contradicted by all available records and data:
- On Sunday, Giuliani claimed on Twitter, “In 70 percent of Wayne County, Detroit, there were PHANTOM VOTERS. There were more votes than registered voters.” You can find the Wayne County official results here, stating 878,102 people voted out of 1,406,355 registered voters. You can find the precinct-by-precinct data here, 105 pages, and none of the precinct results show more votes than the number of registered voters. The closest you come are certain precincts in Trenton, Plymouth, and Northville that surpassed 80 percent turnout. This appears to be tied to the affidavit submitted in Lin Wood’s lawsuit that claimed that 19 precincts had higher than 100 percent turnout . . . because they compared the turnout numbers for precincts in Minnesota communities to the voter registration numbers for precincts in Michigan. The Powerline guys pointed out this mistake Thursday, and apparently Giuliani is still repeating the claim.
- Most people would conclude that when there is a written-in-state-law deadline for the certification of the votes, that certification should only be delayed by a judge’s order after the presentation of ironclad evidence of a tally that is declaring the wrong winner. It is clear that no judge is willing to issue an order delaying the certification without irrefutable evidence. And yet, Trump campaign senior legal adviser Jenna Ellis contends the process can and should work in reverse: Certification of the votes should be stopped based upon the Trump campaign’s allegations, and then afterwards the Trump campaign is obligated to present evidence that the election was stolen.
- Ellis also claimed that Dominion voting machines altered the results of elections in Colorado: “We are seeing how Dominion may have swung some of the state and local races in Colorado as well,” Ellis told KHOW radio host Dan Caplis Thursday afternoon. In Colorado, voters don’t cast ballots through voting machines; all elections have been conducted almost entirely by mail since 2013. The ballots are tabulated through machines, and many counties use Dominion models. To ensure count accuracy, bipartisan teams of judges in each county compare the cast-vote record from the Dominion scanners to randomly selected paper ballots. Dominion tabulation machines are tested before every election by a bipartisan board and checked after each one, and all machines have passed every test.
- Appearing on the Mark Levin program, conservative lawyer Lin Wood, who has filed suits seeking to halt Georgia’s vote count, asserted, “This election was a fraud. Donald Trump won, I believe, clearly a 70 percent plus landslide election in the nation. He probably won over 400 electoral votes.” Winning more than 70 percent of the popular vote would put Trump alongside George Washington, James Monroe, and Thomas Jefferson in American history — elections where a significantly smaller percentage of Americans were legally eligible to vote, and when the country’s population was much, much smaller. The highest percentage of the popular vote in the modern era was Lyndon Johnson with 61 percent in 1964.
And then there is Sidney Powell. On November 14, President Trump tweeted, “Rudy Giuliani, Joseph diGenova, Victoria Toensing, Sidney Powell, and Jenna Ellis, a truly great team, added to our other wonderful lawyers and representatives!” Powell gave her infamous press conference alongside Giuliani Thursday, where she charged, “we have no idea how many Republican or Democratic candidates in any state across the country paid to have the system rigged to work for them.”
Powell appeared on Newsmax TV Friday and broadened her accusations further: “It should thoroughly embarrass the Department of Justice and the National Security administration [sic] and the Department of Homeland Security and the FBI that they have ignored all this for all this time. Either that, or they were complicit in operating it, and running it and using it for their own operations. The CIA, I’m sure, had a hand in it . . . We even got information that there’s a person in the Department of Defense who’s been on the Internet with Bernie Sanders and AOC instructing people how to commit sabotage in their respective offices within the government and there was a couple of hundred people on the call.”
Powell appeared on Newsmax TV again Saturday night and contended that Georgia governor Brian Kemp and Secretary of State Brad Raffensperger were both “in on the Dominion scam with their last-minute purchase or award of a contract to Dominion of $100 million.” She went on to add that the fraudulent use of the Dominion voting machines had been used to ensure Hillary Clinton’s victory over Bernie Sanders in the 2016 election, and that the Vermont senator acquiesced to the fraud. “They used ’em against their own candidates. The Democrats used them against Bernie Sanders in 2016, and somebody even told him what had been done to him when Hillary Clinton won that primary, and he didn’t. And instead of standing up for the American people and the right to vote, he sold out.”
Apparently, all of this became too much to take for either Trump, Giuliani, Ellis, or all of them, because Sunday night, Giuliani and Ellis declared in a terse statement, “Sidney Powell is practicing law on her own. She is not a member of the Trump legal team. She is also not a lawyer for the president in his personal capacity.”
No less a figure than Chris Christie is arguing that the president’s legal team is out of control and making specious accusations in press conferences that they would dare not repeat in court for risk of disbarment. “The president’s legal team has been a national embarrassment,” Christie said bluntly on ABC News’s This Week. “Sidney Powell accusing Governor Brian Kemp of a crime on television yet being unwilling to go on TV and defend and lay out the evidence that she supposedly has. This is outrageous conduct by any lawyer. And notice, George, they won’t do it inside the courtroom. They allege fraud outside the courtroom, but when they go inside the courtroom, they don’t plead fraud and they don’t argue fraud . . . You have an obligation to present the evidence. The evidence has not been presented. And you must conclude, as Tucker Carlson even concluded the other night, that if you’re unwilling to come forward and present the evidence, it must mean the evidence doesn’t exist.”
You can call Chris Christie fat. You can call him a turncoat. You can call him any name you like. But that does not change the accuracy of what he is saying.
At this point, if you believe that a landslide Trump victory was stolen through the use of massive widespread voter fraud and the use of rigged voting machines that converted Trump votes to Biden votes, you believe because you want to believe it, not because the evidence has brought you to that conclusion.
I am being warned that “either [Trump’s lawyers] have proof or they don’t . . . If they don’t, they wrecked their credibility . . . If they do, you just wrecked yours.”
I’m feeling okay so far.
ADDENDUM: If you haven’t listened to The Editors podcast in a while, Friday’s edition is a good chance to rejoin us. Charlie was out, but Alexandra DeSanctis and Madeline Kearns join Rich and myself.
You thought I was going to tout the book a bit more here, didn’t you? The first reviews and ratings are starting to trickle in on the Amazon site. When listing the kind words from varied authors, I somehow forgot this assessment from Matthew Betley, author of Overwatch and the bestselling and packed-to-the-gills-with-action Logan West series:
Geraghty has portrayed a post-pandemic world with unparalleled authenticity and research that rivals the best thriller writers in the business. He foreshadows the next possible pandemic with a thriller of a tale injected with facts, science, and knowledge that only a writer like Geraghty could make equally entertaining and incredibly informative. A must-read for those who want to know what comes next.