The past week saw Team Trump piling up losses and running out of road.
The campaign dropped its lawsuit to stop the certification of President-elect Joe Biden’s victory in Michigan, while the Pennsylvania Supreme Court threw out the campaign’s claim that COVID-19 restrictions had deprived GOP observers of their right to monitor the postal vote count.
Then, on Thursday night, with just four days remaining before both Michigan and Pennsylvania certify their results, Rudolph Giuliani and local lawyer Marc Scaringi dropped a wild new brief in the U.S. District Court for the Middle District of Pennsylvania. Probably the most audacious of the dozens of legal Hail Marys the campaign and Republican interests have hurled into the end zone since Election Night, the filing argues that the campaign’s constitutional rights have been violated and asks the judge to declare Trump the winner of the Keystone State’s 20 electoral college votes.
But, according to Charles Fried, solicitor general under Ronald Reagan, this brief’s legal claim hangs almost entirely on a single word: “meaningful”—as in the “meaningful observation of the canvassing of mail ballots.” The professor at Harvard Law School told The Daily Beast that, in this context, ”meaningful” has no meaning at all.
The suit makes essentially the same argument that the state Supreme Court rejected: that observers in several counties could not get as near to the tabulation as they wanted. Now, at the federal level, they argue the system in Pennsylvania violated the campaign’s due process rights under the 14th Amendment by denying them “meaningful” access.
According to Fried, however, “meaningful” has no legal definition, nor is it adequately described in the legal team’s filings.
“There's no allegation here. It's just an unsubstantiated claim, which was thrown out in several courts,” he told The Daily Beast. “And now they've gone to federal court. Why should the result be any different?”
Fried described this latest tack as “garbage”—the same way he characterized the Trump team’s legal efforts two weeks ago, before the campaign shed several attorneys and took on Giuliani and Scaringi.
Giuliani’s entry into the fray brought a different tone to the legal efforts to overturn the election results. Whereas past Trump lawyers outright denied the campaign was alleging any malfeasance, or relied on innuendo about supposedly suspicious behaviors at counting sites, the former New York City mayor and U.S. Attorney threw around unfounded accusations of “widespread, nationwide voter fraud” in federal court on Tuesday.
Giuliani also admitted in court that he was unfamiliar with the word “opacity,” despite it appearing in the campaign’s legal complaint, as well as with “strict scrutiny”—a crucial term in 14th Amendment cases like the one he’s now helming.
It was a performance another conservative jurist deemed “ludicrous,” and likely to result in a swift defeat after the final paperwork gets filed in the Middle District on Saturday.
"We're seeing some horrible lawyering,” said Stuart Gerson, a veteran of George H.W. Bush’s presidential campaign and Department of Justice who briefly served as acting attorney general under President Bill Clinton. “Mr. Giuliani and his friends seem to be staging a mini-coup, and they’re going to lose.”
On Thursday, Giuliani headed up a press conference where he repeated his allegations about fraud and the team advanced a conspiracy theory implicating liberal billionaire George Soros and late Venezuelan strongman Hugo Chavez. The performance left even usually Trump-friendly pundits dumbfounded and demanding evidence.
In the legal brief submitted that evening, however, Giuliani sought to evade such demands by insisting the burden of proof lay on Pennsylvania to prove the mail-in ballots it counted were legal. Gerson characterized this maneuver as unprecedented and absurd.
"There's no legal basis for it. It stands things on its head,” he said, blaming the tactics and rhetoric on Trump himself. “This is a very unusual situation with a very unusual president, who really believes he's going to try everything to illegally stay in office.”
The president’s attorneys did not respond to a request for comment.
On Thursday, a judge in Arizona dismissed a Republican lawsuit that sought to delay the certification of results in Maricopa County, making it all but inevitable that the state’s 11 electoral votes will go to Biden. On Friday, Georgia certified its 16 electors for the Democratic former vice president. In the afternoon, his legal efforts in the Wolverine State apparently dead, Trump hosted the GOP leaders of Michigan’s legislature at the White House, touching off speculation that they would collaborate with the president’s efforts to disregard Biden’s massive margin in the state and seat a panel of Republican electors to choose the next president.
But the state lawmakers released a departing statement afterward vowing to "follow the law and follow the normal process," and adding that "the candidates who win the most votes win elections and Michigan's electoral votes.”
Pennsylvania’s Republican legislative heads have made a similar vow, and local experts argued their intervention was highly improbable.
“It looks like Trump’s campaign has entered the last ditch effort here in Pennsylvania and it does not seem that it will have any impact on the outcome,” said Professor Daniel Mallinson, of Penn State Harrisburg. “This all seems like political theatrics now between Trump and Giuliani.”
Here’s a rundown of all the failed efforts to keep Trump from losing crucial states:
- Aguilera v. Fontes: the original “Sharpie suit,” this case brought against Maricopa County Recorder Adrian Fontes and the secretary of state alleged machines failed to properly tabulate ballots filled in with a marker. GOP lawyer Alexander Kolodin dropped the case after national Republicans intervened, only to file it again once they did the same. A judge threw out the suit on the second try.
- Donald J. Trump for President v. Hobbs: #SharpieGate round two. The president’s team declared their own suit moot after tallying wrapped.
- In Re:Enforcement of Election Laws: In one of the stranger legal briefs the Trump campaign has filed, a GOP operative from South Carolina claimed he observed the mishandling of a stack of 53 ballots in Savannah—then recanted his testimony.
- Brooks v. Mahoney: Voters from Trump-backing counties sought to block the results of pro-Biden on the basis of alleged technical and administrative breakdowns. Dropped five days after filing.
- Donald J. Trump for President v. Benson: The first suit the campaign lodged against Michigan Secretary of State Jocelyn Benson in the state Court of Claims sought to stop the vote count on unsupported claims of inadequate access to counting facilities and also demanded the state provide video footage of ballot dropboxes. A judge declared the case moot because the tabulation was complete.
- Constantino v. Detroit: A pair of GOP poll watchers brought suit against local authorities claiming to have witnessed an array of election law violations. A judge denied them the injunction and audit they requested, citing a lack of evidence.
- Donald J. Trump v. Benson: The campaign tried its luck against Benson in federal court, hurling a potpourri of alleged improprieties at the state in an attempt to prevent the certification of the state’s results. It dropped the suit amid confusion over certification in Wayne County.
- Bally v. Whitmer: A gaggle of GOP voters sued Gov. Gretchen Whitmer and the Board of State Canvassers in federal court, trying to prevent the certification of the election because of documented errors and alleged malfeasance. They subsequently abandoned the case.
- Johnson v. Benson: In a strikingly similar suit, a pair of Republicans sought action against Benson and the chair of the Board of State Canvassers, and then dismissed their own case.
- Kraus v. Cegavske: Filed in state court a week and a half before Election Day, this suit brought by Nevada Republicans and the Trump campaign made now-familiar claims about inadequate access to polling sites, plus Nevada-specific ones complaining about Clark County’s use of machines to count ballots. A judge determined the allegations were baseless and the petitioners lacked legal standing, and appeals failed.
- Stokke v. Cegavske: Essentially the big budget soft reboot/sequel to the state-level lawsuit, this suit rolled out with great fanfare after the election repeated the same claims and met with similar results.
- Barnette v. Lawrence: The opening shots of the post-election battle started with two suits attacking “ballot-cure” measures, in which numerous counties permitted absentee voters to “cure” errors. This one, brought in federal court by failed Congressional candidate Kathy Barnette, withered as attorneys withdrew their motion for a restraining order against Montgomery County authorities.
- Hamm v. Boockvar: This state suit brought by Rep. Mark Kelly (R-PA) and State Rep.-elect Joseph Hamm targeted ballot-cure guidance from Secretary of the Commonwealth Kathy Boockvar—but failed to do more than get the provisional ballots cast to correct the absentees segregated from the larger pool.
- Donald J. Trump for President v. Philadelphia County Board of Elections: The campaign won a short-lived victory when a state court held that COVID-19 restrictions impinged on the right of GOP observers to monitor the counting process. The order was stayed on appeal and eventually overturned, and in the meantime the lame-duck president’s campaign filed this federal suit to stop the count. The court denied it without prejudice.
- RE:Canvassing Operation: Trump’s effort to overturn the COVID-19 restrictions at the Philadelphia Convention Center had a brief moment of success, but got stayed when local authorities and the Democratic Party appealed the decision to the state Supreme Court, which overturned it.
- Donald J. Trump for President v. Montgomery County: This suit contested the validity of a few hundred absentee ballots lacking handwritten addresses or dates. Trump and the Republican National Committee lost in state court, appealed, then withdrew their appeal.
- Donald J. Trump for President v. Bucks County: Similar to previous suit, only involving a few thousand postal votes in a different collar county. Also dismissed.
- Pirkle v. Wolf: This complaint against Boockvar and Gov. Tom Wolf was spearheaded by a pastor who alleged a slew of inconsistencies and improprieties in vote counting in Democrat-heavy jurisdictions, and was eventually withdrawn.
- RE:Canvass of Absentee and Mail-In Ballots: A cluster of five lawsuits brought simultaneously, suit also sought to disqualify a few thousand ballots lacking a complete date or address. A judge rejected the case, and an appeal now sits before the Pennsylvania Supreme Court.