Bizarro-world

Trump's bizarro-world 'elite strike force' legal challenge is about to implode

Opinion by Elie Honig

Just moments after a federal judge issued a blistering rebuke of their evidence-free, legally-confused effort to contest President-elect Joe Biden's win in Pennsylvania, President Donald Trump's legal team flailed to spin the crushing loss as some sort of bizarro-world victory. Trump campaign attorneys Rudy Giuliani and Jenna Ellis claimed in a statement that the dismissal "turns out to help us in our strategy to get expeditiously to the US Supreme Court."

But if the Trump campaign's legal team is counting on the Supreme Court to save them, they're delusional. In this case, and in the larger effort to contest the outcome of the 2020 election, Trump's team is just about out of runway.

In a news conference laden with false statements and incomprehensible legal claims, Ellis labeled Trump's legal team an "elite strike force." But their utter failure to uncover evidence of widespread voter fraud, or to articulate a coherent legal theory, suggests otherwise. Former New Jersey Gov. Chris Christie -- a staunch Trump political ally -- more aptly called Trump's legal team a "national embarrassment." The Trump team later distanced itself from Sidney Powell, an attorney on Trump's legal team, after she spread conspiracy theories about the election.

Indeed, Saturday's ruling by federal judge Matthew Brann -- an appointee of President Barack Obama who previously held various positions in Pennsylvania's Republican party -- is one of the harshest rebukes I've ever seen from any judge. Brann heaped scorn on the Trump campaign's "strained legal arguments" which, he noted, are "without merit ... and unsupported by evidence." He ridiculed one of the Trump team's primary constitutional claims as a "Frankenstein monster." And Brann noted that the Trump campaign position, if adopted, would "disenfranchise almost seven million voters."

Never easily deterred, Giuliani and company vowed to appeal the case to the 3rd US Circuit Court of Appeals, which is their right. But they've got a major uphill climb, given Brann's unequivocal finding that they offered no evidence and no cognizable legal theory. And the Trump team cannot offer up new evidence now, before the 3rd Circuit. As a procedural matter, federal courts of appeals typically consider only the evidentiary record that was before the district court, and do not take into account newly discovered evidence (not that there's any indication Giuliani and his team actually have discovered any such thing).

Beyond that, the Trump team takes a broad leap of faith that the Supreme Court will agree to hear their case. While losing parties in federal court generally can appeal as a matter of right to the court of appeals, nobody has a right to be heard by the US Supreme Court. The decision to hear a case -- called "certiorari," in the lingo -- is entirely up to the court itself, requiring a vote of at least four of the nine justices. The court typically grants certiorari in less than 5% of the cases brought to it for consideration. And the court usually tries to avoid getting involved in politically charged cases.

Even in the unlikely event the Supreme Court does take the case, there's little in the record thus far to suggest the Trump team will prevail. Brann got it right when he found that Trump's position lacked two things: one, facts, and two, law. It doesn't matter much that the Supreme Court currently holds a conservative tilt; there's no ideology that can make up for those glaring twin deficiencies.

And even if, against all odds and against all reason, the Supreme Court does take the Pennsylvania case and rules in the Trump campaign's favor, it still would not be enough to change the outcome of the election. The Trump campaign would need to pull off a similar legal miracle two more times. Given Biden's electoral margin of 306-232, even if Trump somehow flipped Pennsylvania (with its 20 electoral votes) and, for example, Michigan (16 votes), Biden would still hold a 270-268 electoral advantage.

The attempts by Trump's lawyers to overturn the results of the 2020 election have indeed been a national embarrassment, as Christie put it. And it has been something worse than that, too; an "embarrassment" can be laughed off, but this ongoing effort to undermine public faith in the 2020 election does real damage to our democracy.

But know this: Through all the angry podium-pounding, through all the noise and bluster, Trump's lawyers have nothing. Their legal effort has been doomed from the day it started, and they're just about at the end of the line.