Donald J. Trump for President, Inc. had a hearing Tuesday afternoon, Nov. 17, in federal court. Things did not go well for the campaign. Despite allegations aired in the media of massive voter fraud – including that vote totals were manipulated by Venezuela, the Philly mob, or software designed by the CIA – no evidence of such crimes was presented in court. On the same day, the campaign lost a case at Pennsylvania’s Supreme Court. The remaining case from Pennsylvania at the U.S. Supreme Court looks both inconsequential from an election results perspective and unlikely to be resolved in Trump’s favor.
The hearing was held in the federal courtroom of Judge Matthew W. Brann, an Obama appointee confirmed unanimously by the Senate and by voice vote. That confirmation vote tells us Judge Brann was not a controversial nominee or one given to overt partisanship. Those lucky enough to get a slot to call in and listen to the hearing could understand why – Brann gave lawyers for both sides plenty of patience and forbearance, and they needed it.
America’s Mayor ®
Rudy Giuliani joined the case at the last minute – the night before, in fact – and his lack of preparation or maintenance of an ongoing federal civil practice showed all over the place. At one point, Judge Brann asked him what standard of review the court should apply to the case, and America’s Mayor responded, “The normal one.” Any first-year law student knows that is the wrong answer because it is not one of the three standards of review the judge could choose under U.S. Supreme Court precedent. Those are rational basis, intermediate scrutiny, or strict scrutiny.
Lawyers for the other side were far worse, as theirs were sanctionable errors of commission. They made improper personal attacks on Giuliani’s preparation, as well as a prank phone call from an associate at Kirkland and Ellis, a big-time law firm that represents the state. Those are all atypical features of federal civil court hearings. Judge Brann did a good job of herding cats in the case and, lucky for the unnamed Kirkland associate, did not issue a formal reprimand. He did not make any substantive rulings; however, he did signal he would rule against the Trump campaign.
Bad News for Team Trump
Judge Brann, unprompted, asked the Trump campaign legal team if they would like the opportunity to file a written brief in opposition to the motion to dismiss. That suggests he is inclined to grant the request to dismiss but wants to make sure the plaintiff has a chance to put forth its best arguments in opposition as clearly as possible.
Finally, the judge had previously scheduled an evidentiary hearing for Thursday, November 18. He called that off at the end of Tuesday’s hearing, and when asked if it was merely postponed or canceled altogether, he said it was canceled. While not dispositive, that indicates he doesn’t see the need for one because he will rule to dismiss the case. There is no time requirement for the judge to rule on the motion, but given the stakes and the timeline, we should expect a decision soon after all the argument briefs are filed.
Read more from Scott D. Cosenza.