Tuesday, November 17, 2020

Rudy In The Crapper

I don't trust the NYT blindly, not since Whitewater. But I do trust Maggie Haberman's reporting. And now he wants to parachute in? It is to be noted Rudy hasn't been in a federal courtroom as an attorney since 1992. That would be two years less than the last time I was in a federal courtroom as a lawyer. I wouldn't chase out all the lawyers but one and then drop myself into the case on the day of the hearing. Is Rudy that egotistical? Or trying that hard to earn $20,000 a day? Answer: yes. 

So I come back to (finally!) find a live Twitter feed of the hearing. I'm going to start with the defendant's argument (it's on a motion to dismiss by the defendant, which will hinge largely on that the plaintiff's (Trump's campaign) have said on paper, not what Giuliani ranted about. I'll leave his opening argument for my comments.
You can't file a complaint that alleges one fault, and then argue in court there are a dozen others if we just get the chance to prove them. Giuliani alleged there are 1.5 million "illegal ballots." In the country? In PA? The tweets don't make that clear, but either way, he needs evidence of that, not bald assertions. This ain't TeeVee court. And, more to the point, that claim is not in the complaint. It may not seem like it, but this is where Trump could be in real trouble, and nothing Giuliani said in his opening statement addressed the issue. And there the line went dead. Well, with 4000 people on it (literally), who's surprised?

Parting shots (I can't find anything about the outcome of the hearing, if there was one).  Giuliani was talking like a TeeVee lawyer (and not a very good one).  You don't go into court on a motion to dismiss and toss out vague allegations and groundless assertions.  
And like this: Here's the one (recorded) attempt at Giuliani entering actual evidence into the hearing: Yeah, that's not evidence. That's the kind of baseless crap the rules of evidence are designed to keep out of a courtroom.

Let me explain, briefly, a motion to dismiss.  The burden is on the defendant to show that the plaintiff's don't have a case, or can't bring it (that's the standing issue).  All a plaintiff really has to do is show enough evidence to establish the legitimacy of a claim which can be further developed with discovery.  This, for example, is not a winning argument: You can't go to court on a mere allegation.  You can't sue and say "Well, we'll find SOMETHING!"  Discovery can give you more information than you had, but you can't "go fishing" and hope you catch a fish.  The defendants are trying to prove, in one part, that Giuliani is on a fishing expedition.  On the standing issue, they're trying to prove Giuliani doesn't have a fishing license; or a boat, or a fishing pole, or even bait.  And the court shouldn't supply it to him.

There is a bit more now (lines keep going down, apparently everybody is on a phone, plus 8000 trying to listen in), and it's kind of interesting: The equal protection argument = Bush v. Gore. In a courtroom, that kind of argument is just brutal. May not seem so to you, but he just pantsed Rudy.And this is what can only be called a fatal flaw: Although it's likely (and ironic!) the court would allow the plaintiffs to "cure" their pleadings. But since they just dropped all the allegations of vote fraud in PA, how do they now bring them back? The counter argument to allowing a "cure" is that the plaintiff dropped those claims once, they don't get to pick them up again just to keep their case in court for the next motion to dismiss hearing.

Yeah, that's a damning argument right there. Courts do NOT want to get involved in determining the outcome of elections. And Giuliani is not giving this court a reason to. This is his chance; he's not rising to the occassion. Aronchick represents the Board of Elections. This explains why he's so pissed: The takeaway so far is that Rudy parachuted in to do a FoxNews rant rather than a legal argument. His argument bears no resemblance to the plaintiff's complaint, which should be a fatal flaw; but I've seen judges rescue weaker complaints against motions to dismiss, so my crystal ball is broken. But I will only be surprised if the motion isn't granted. Again, the court is guided by the complaint, as amended (meaning: most recent version). If you don't allege it, you can't bring it up in court. So this isn't a tossed off remark; it's critical to the motion to dismiss. (Another lawyerly point: the complaint was undoubtedly amended in response to the filing of this motion, because the lawyers knew they couldn't win on those grounds. Rudy is trying to, anyway, because what's left isn't all that defensible, either.) This is why the court might be inclined to rule soon. Deadlines loom. (That's the REAL lesson of Bush v Gore.) And still more people to hear from! I think somebody just tied an anchor to that lifeline, and threw it at Giuliani: Remember the old cartoons where the character went under the water and help up three fingers, then two, then one, then the hand disappeared? Glub glub glub. Glub glub. Glu glub glub. Wave bye-bye, Rudy. We interrupt this drubbing to report on another drubbing, in another state: Kinda wonder what Trump's gonna say about this fiasco. (and no, "the normal one" in answer to "What standard of review should apply?" is not a legal/lawyerly response.) From a lawyer's point of view, that's an illiterate answer. Aaaannnnddd....scene! "Briefing" means he has points of law he wants them to research. His comments in the hearing indicate he's less than impressed with Trump's case, but he also knows this will go up on appeal. He wants to cross his "t's" and dot his "i's."


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