The Trump Presidency

[Zakalwe]

Another way to approach this, given what the regulations actually say, would be to note that Donald J. Trump would probably prefer to rely upon his own "knowledge" and "expertise" when appearing in public as the former President. 

Even leaving aside any scenarios of him selling the information, Trump being Trump would  probably request it just because he felt entitled to it and to be a nuisance to the new administration

Just give him a Sharpie and some blank folder separators and he can write his own.....

[JayUtah]

Could that be used as a ground for appeal?

It was appealed on those grounds to the Third Circuit Court of Appeals.  An opinion has issued.  https://www.justsecurity.org/wp-content/uploads/2020/11/Trump.pdf The decision of the three-judge panel was unanimous in supporting the denial of leave to amend the complaint.  Justice Stephanos Bibas, a Trump appointee, wrote the decision.  Highlights:

1. Declaratory judgment that Judge Brann did not abuse his discretion in disallowing the second amendment.
2. Denial of an motion to stay the effect of Pennsylvania's vote certification.

The appeal did not challenge the ruling that individual voters lack standing.  Thus the only remaining plaintiff is the Trump campaign.

Leave to amend may be properly denied for reasons of undue delay.  The Trump campaign stated in previously filings that it could not receive equitable relief after the vote is certified, and urged haste.  J. Bibas notes that they cannot now change horses and try to vacate what they previously cited as a hard deadline, just because further delay now favors them.  This is especially egregious when they are merely reinstating previously withdrawn claims.  The defense could have been addressing them this whole time instead of now having to scramble to produce an answer before the deadline tolls.  Going back through the jurisprudence on prejudicial denials or grants of leave to amend, this seems to be a well founded judgment.  Again, bad lawyering from the plaintiffs.  They tried to create artificial emergency and it came back to bite them:  Judge Brann ruled perfunctorily according to his discretion because, in essence, that's what the plaintiffs said would have to happen.

Leave to amend may be properly denied if the proposed amendment doesn't cure the fatalities in the existing complaint, or if the resulting complaint is newly insufficient on its face.  J. Bibas notes that the renewed claims have already been addressed in other courts and have no further merit.  If the second amended complaint would be just as legally deficient as the existing version, that's sufficient grounds to deny leave to amend.

The real humor starts on page 14 where J. Bibas discusses the rather ham-fisted attempt to pivot from and Equal Protection argument involving the (now disqualified) individual voters to an Equal Protection argument that pertains to the remaining plaintiff -- the campaign.  It's sad.  In order to make that a viable cause of action, plaintiffs would have to argue -- not prove, at this stage, just argue -- that Trump campaign operatives were treated unequally to Biden campaign operatives.  And they can't even manage to get that right.

The number of votes in question is far below the margin of victory. Even if plaintiffs successfully challenge the validity of all votes in question, the outcome of the election does not change.  This is why the plaintiffs are demanding vast numbers of likely legal ballots should be thrown out with the bathwater, an argument that's just going to fall flat.

At the top of page 17 there's a subtly worded jibe.  Motion to stay the results of the election was denied, in this case for failure to have filed the motion with the appropriate court.  When your case is dismissed and you wish to appeal, a motion to enjoin the effects of the case dismissal until an appeal can be heard must be made to the district court that dismissed your case, not to the appeals court (except in rare circumstances).  Again, just consummately bad lawyering.  The Federal Rules of Appellate Procedure are basic second-year law student knowledge.

Pennsylvania case law favors the right of the voter to vote, over and above technical glitches or deficiencies.  Therefore ballot-curing, where not explicitly prohibited, is allowable.  Federal court is the wrong place to litigate the details of Pennsylvania's election policy.

J. Bibas notes that there is an outstanding schedule of motions and briefs, so it appears this court has more to say on the matter.  But I'm not sure what that is.  Likely there will be an attempt to appeal from here to the U.S. Supreme Court.  But J. Bibas' ruling appears airtight enough that I doubt certiorari will be granted.

[Allan F]

I understand that Mr. Trump wishes to cling to power. I also understand why. But what I don't understand, is why so many other people are willing to hitch their own wagon to his train on a track to the abyss. They must know he's on borrowed time, he won't (be able to) pay them, and their reputation will carry that stain for a long long time.

Basically, why do people want to work for him? The loonies like Paula White and all the televangelists I understand, they are in it for the people's money  - direct to them. But those people who actually work for him and he has to pay out of his own pocket? Why?

[Bryanpoprobson]

I was going to tell you all a Rudy Giuliani joke, but it’s lost its appeal.

[gillianren]

I can't fathom how anyone would work for him in any way; he doesn't pay his bills.  At this point, he should find it impossible to get delivery, much less hire a lawyer.

[JayUtah]

I was going to tell you all a Rudy Giuliani joke, but it’s lost its appeal.

It took me way too long to get this joke.

[Peter B]

https://www.bloombergquint.com/politics/pennsylvania-judge-backs-trump-claim-in-case-over-mail-voting

Is there anything of concern in this judge's ruling?

[JayUtah]

https://www.bloombergquint.com/politics/pennsylvania-judge-backs-trump-claim-in-case-over-mail-voting

Is there anything of concern in this judge's ruling?

Nope.  The Pennsylvania Supreme Court has just dismissed the case.

[Peter B]

https://www.bloombergquint.com/politics/pennsylvania-judge-backs-trump-claim-in-case-over-mail-voting

Is there anything of concern in this judge's ruling?

Nope.  The Pennsylvania Supreme Court has just dismissed the case.

Can that decision be appealed? If so, to which court?

As far as I can see from UM, the grand strategy is to keep appealing until they can get their case before the SCOTUS where they assume they'll get whatever they ask for.

[Zakalwe]

Trump is desperate to get a case into the Supreme Court where he hopes that headbanger Justice Barrett gets a chance to rule on this case.

[gillianren]

Frankly, I think Roberts wouldn't dare.  He's too concerned about his legacy to side with Trump again.  I also think he'd rather wait out four years and hope to get a Republican in office who would give him what he wanted without the heavy side order of venality and corruption.

[JayUtah]

Can that decision be appealed? If so, to which court?

The U.S. Supreme Court may review decisions of State high courts only if a "federal question" has been raised or if diversity jurisdiction exists.  Otherwise the decision of the highest court in a State is considered final.  As usual, even if the case does present a federal question, the U.S. Supreme Court is not required to grant certiorari.  And for the reasons I give below, they almost certainly cannot here.

A federal question is raised when a state court renders a judgment on a complaint that refers to some federal law, federal regulation, or the Constitution among the laws cited in its causes of action, and the decision at least partly applies the federal law.  If the highest court in the state renders a decision that attempts, among other things, to interpret a federal law -- even if it does so correctly -- then the case becomes reviewable by the Supreme Court.

The reason why a federal question would arise in a State court is rooted in historical federalism.  The U.S. Supreme Court delegates authority to rule on federal statutes to the State courts, and considers them competent to do so.  And throughout history, it served the interests of the parties for that to happen.  State courts were generally more accessible than "circuit" courts, and swifter justice could be obtained.  Generally the defendant has the right to "remove" to a U.S. District court any action arising in State court out of federal law.  It is more common today for causes of action arising purely under federal law to be brought in U.S. District courts, because there are more of them and travel is easier now.  And also, some theories of liability require applications of both federal and state law, and only the State court is empowered to grant the relief plaintiffs seek.  Those are cases that must arise in State court, but which necessarily raise federal questions.

Diversity jurisdiction occurs when no two plaintiffs in a State action reside in the same State.  This is not the case here.  All plaintiffs are Pennsylvanians.

The original complaint cites only Pennsylvania Commonwealth law and the Pennsylvania Constitution as the statutory authority for its causes of action, although it does reference the U.S. Constitution earlier to establish that the Pennsylvania General Assembly could share the responsibility to grant the relief plaintiffs seek.  However, the complaint does not allege a violation of the U.S. Constitution.  Nor was the Pennsylvania Supreme Court's dismissal in this case based on any federal law.  I cannot see how the plaintiffs could establish the existence of a federal question based on the pleading.

The case was dismissed on -- you guess it -- a "technicality."  The legal doctrine of laches states that plaintiffs intending to bring an action have a duty to diligently pursue that action as soon as it is ripe, and especially not in a way that creates prejudice.  A challenge to the facial constitutionality of a law becomes ripe the instant the law is enacted.  In this case, the law allowing mail-in ballots for all Pennsylvania voters was enacted more than a year ago.  The limit on such actions in Pennsylvania was 180 days, so the present action was foreclosed.  Further, not only did plaintiffs wait until long after their laches limit had tolled, they continued to wait until just days before Pennsylvania was to certify its election, leaving little time to prepare a defense or litigate prudently.  This is considered prejudicial.

Finally, the plaintiffs allowed a prior election -- the Pennsylvania primary -- to proceed under the laws they now challenge, without so much as passing interest at the time.  This undermines any last-minute attempt to litigate the same issue now under an as-applied theory of unconstitutionality.  Any period of justiciable injury under laches begins when the first injury occurs, not at some arbitrary later time that more favorably suits the plaintiff's interest.

As far as I can see from UM, the grand strategy is to keep appealing until they can get their case before the SCOTUS where they assume they'll get whatever they ask for.

I'm quite sure that's their strategy in most cases.  But if that was their plan here, then bad lawyering again comes to the fore.  If you bring your case in state court and expect the decision of that state's highest court to be reviewable by the U.S. Supreme Court, you have to plan ahead.  Your original pleading must cite to applicable federal law in its cause of action from the start.  You can't add it later.  It doesn't happen if a federal question is raised in the defense.  Count 1 of the complaint contains no references whatsoever to anything beyond the Commonwealth of Pennsylvania and as such fails to plead a federal question.  (Count 2 tries to justify the injunctive relief sought.)

More likely in this case is that Plaintiffs knew full well their complaint would be dismissed for mootness and are simply trying to create the vague impression among the lay public that challenges to election practices are being dismissed for frivolous reasons instead of being heard on their merits.

[Glom]

So, it seems that a lot of important figures have integrity this time round, but given the American habit of making the selection of the milkman a partisan exercise, what are the chances things will be as reliable in four years time?

[jfb]

The lawsuits are not a legal strategy to actually change the results of the election, they are a PR strategy primarily to soak as many rubes for as many dollars as possible and secondarily to delegitimize Biden's administration.  They exist for the sole purpose of planting doubt in the public's mind about the entire process.  It's all about painting FedSoc judges as "activist", all election officials as "corrupt", all elections where your favored candidate loses as "fraudulent", Biden's Presidency as "illegitimate", etc.  And 74 million people are swallowing it whole. 

Everything Trump Touches Dies. 

[raven]

We are entering a new era of American decisiveness, I would wager. Future Historians are going to look at this and say 'this is that moment'. Of course, there's been a lot of build up that isn't so obvious, but this is going to be That Point in History.