By “strategy,” I mean exit strategy, not legal strategy. There’s no legal strategy. Trump’s lawyers are now 1-35 in post-election lawsuits and that’s not due exclusively to the facts not being on their side. It’s impossible to capture the incredulous disdain among professional litigators at how amateurish the Trump “elite strike force” has been, although this NBC piece tries.
“It’s beyond an embarrassment,” said lawyer Glenn Kirschner. “It’s both really poor lawyering and it has the worst possible motive behind it. It’s all in the name of overturning the will of American voter.”
Election lawyer Matthew Sanderson compared Giuliani unfavorably to James Baker, who led George W. Bush’s legal effort in the 2000 presidential election.
“This is like Bush v. Gore, but replace James Baker with the editor of a QAnon subreddit,” he said. “It’s not competent lawyering. There are strategic errors, typographical errors — every kind of error you can make in a case.”
“It’s as dysfunctional a litigation strategy as I’ve ever seen,” Sanderson added.
It’s not just the wild conspiracy theories. It’s basic stuff like misspellings in their court filings and Rudy Giuliani not seeming to know what the judge in Pennsylvania meant last week when he asked what level of “scrutiny” should be applied to Team Trump’s equal protection claim. Akiva Cohen, an IP litigator, put it this way:
Imagine you moved to a new town and are going to see a new doctor for the first time. And when he walks in, he has his stethoscope dangling out of his ass. And then he pulls it out and says "OK, I want to take your temperature now" and moves to place it on your forehead.
— Akiva Cohen (@AkivaMCohen) November 23, 2020
They are inventing entire new categories of legal ineptitude. This is the worst lawyering I've ever seen, and folks, I've seen some shit. (For avoidance of doubt: Yes, "shit" literally means feces, but I am not using it in that sence, v'hamevin yavin)
— Akiva Cohen (@AkivaMCohen) November 23, 2020
Only the president knows whether he ended up with his inept team because he prized their “loyalty” over the skill set of more serious lawyers or whether he ended up with them because no one else would press a case as thin as this one except Giuliani and Ellis, but we are where we are. The beatings will continue until morale improves, or until the U.S. Supreme Court says “enough.”
Which leads me to wonder: Is that Rudy’s and Ellis’s real endgame here?
Lou Dobbs: Why the split with Sidney Powell?
Rudy: It’s all part of our plan to get *four* cases to SCOTUS pic.twitter.com/qkY0icHKJW
— Jan Wolfe (@JanNWolfe) November 24, 2020
One side has to appeal a final opinion they disagree with.
As I said, Third Circuit has granted our appeal, and we already have one case from PA pending before SCOTUS.
Thanks Ari for having me!
— Jenna Ellis (@JennaEllisEsq) November 24, 2020
Ellis also retweeted this last night after the GSA finally ordered the start of the formal transition to Biden:
Guys: it’s the GSA.
Not the Supreme Court.
— Sebastian Gorka DrG (@SebGorka) November 24, 2020
Whether you think Giuliani and the rest of the team sincerely believe they have a shot at winning in front of SCOTUS depends on your sense of their capacity for rational thought at this point. Laura Ingraham, a former Supreme Court clerk, told her audience a painful truth last night when she said that an election-changing victory before the Court is unlikely in the extreme. I’d guess that in an absolute best-case scenario, Trump might get Alito and Thomas to sign on to some claim or another and end up losing 7-2. More likely he’ll get blitzed 9-0. And that’s assuming the Court agrees to hear an appeal from the Third Circuit in the first place, which it’s not required to do and probably would rather avoid since the election doesn’t hinge on the outcome of Trump’s Pennsylvania suit.
But what the Court *can* do for Giuliani and Ellis, even if it doesn’t grant cert and hear their appeal, is provide them with a scapegoat. Some segment of the MAGA base seems convinced that our new 6-3 conservative majority, led by Amy Coney Barrett, will deliver a second term for the president by concocting some dubious rationale or another to declare him the winner. They won’t, but that view is at least in keeping with TrumpWorld’s sense of his justices as low-rent partisan hacks who’ll put “loyalty” and gratitude over the legal merits in a high-stakes case that involves him. The point is this, though: If Rudy and Jenna don’t come up with another scapegoat for Trump and his fans to blame for losing so badly in court, they’re at risk of becoming the scapegoats themselves. The easiest way out of that dilemma is to find a bigger scapegoat for MAGA Nation — namely, Barrett, Neil Gorsuch, and Brett Kavanaugh. If they can get before SCOTUS then they’re in a win/win position from the standpoint of their own self-interest. If they win the case, great! They’re the world’s greatest lawyers, the people who saved Trump’s presidency.
And if they lose, or if the Court refuses to hear their appeal? That’s fine too because in that case the story will no longer be the absurdly thin factual record they’re working off of or the embarrassing incompetence of their litigation. The story will be Trump’s SCOTUS appointees stabbing him in the back at a moment when they could have saved America. The story of Trump’s 2020 campaign will in time become a “dolchstoss” narrative on the populist right with many villains; Giuliani and Ellis will either be among them or they’ll find a bigger villain to take their place. That’s why they’re so hyped to get before the Supreme Court, I think. They don’t seriously believe they’ll win — I hope, or else they’re really far gone — but even a loss will succeed in shifting blame for the failure of Trump’s effort from his lawyers to his judicial appointees. Watch out for the “SCOTUS NEXT!” hype as soon as the Third Circuit flushes Team Trump’s appeal down the toilet.