- The Washington Times - Wednesday, November 18, 2020

U.S. District Judge Matthew Brann posed a routine question to the lead attorney for President Trump‘s election challenge in Pennsylvania: What type of standard should the court use to evaluate the campaign’s claims of fraud in the Nov. 3 presidential election?

“Normal one,” responded Rudolph W. Giuliani.

Lawyers from coast to coast listening in on Tuesday’s pivotal election fraud hearing in Williamsport, Pennsylvania, cringed at the response from “America’s Mayor,” making his first argument in court in years as he tried to back up Mr. Trump‘s claims that the election was stolen from him.

There are only three types of standards for review: rational basis, intermediate, and strict scrutiny. Nowhere in law texts is a “normal” review found.

At that moment, the trajectory of Mr. Trump‘s legal assault on the ballot count came into grim relief and reaffirmed widespread skepticism that the lawsuits — or the legal team pursuing them — will succeed.



Indeed, the ascendancy of Mr. Giuliani on the lawsuit team struck the Washington legal community as a harbinger of deep trouble for the president’s election challenges. The 76-year-old Mr. Giuliani, who has a close personal relationship with fellow New Yorker Mr. Trump, took the lead after top Washington law firms, including Jones Day and Porter Wright Morris & Arthur, either took a pass or bowed out.

A trio of lawyers, including Linda A. Kerns, moved to quit the federal case in Pennsylvania shortly before Tuesday’s arguments, allowing Mr. Giuliani to step up.

Ms. Kerns said she was harassed and threatened by another lawyer for being involved in the case, reflecting possible anti-Trump animus that could undermine the president’s hopes for a fair hearing in court.

Stanley Brand, a former House general counsel and a veteran of high-profile political litigation, said there is a good reason Mr. Giuliani ended up the lead attorney in the case.

“The people who have done this for a living for 30 years or 40 years are not participating in this because they don’t see the validity of the claims, and they’re not going to go into court and embarrass themselves,” he told The Washington Times. “The lawyers are looking at this and saying, ‘I can’t go into the court with a straight face and say these things.’”

Mr. Giuliani earned a national reputation as a prosecutor targeting Wall Street tycoons in the 1980s but has not been a courtroom attorney since he was first elected as mayor of New York in 1994. Among the legal lowlights of Tuesday’s session were Mr. Giuliani’s apparent forgetfulness of which judge he was addressing and his acknowledgment to the court that he wasn’t sure about the definition of “opacity.”

Mr. Brand said most lawyers don’t want to risk their reputations just to make a buck or for the bragging rights of having the commander in chief as a client. What’s more, they don’t want to risk court sanctions under Rule 11 for making patently unsupportable allegations.

Those concerns haven’t stopped Mr. Giuliani, nor the criticism he faces for having taken on the case.

Jason Harrow, chief counsel and executive director of the left-wing group Equal Citizen, called for sanctions soon after the hearing. Like many of Mr. Trump‘s critics, he argues that the president has yet to produce compelling evidence in any of the states in question that would overturn Democrat Joseph R. Biden’s apparent popular and Electoral College victories.

Mr. Harrow accused Mr. Giuliani of “making false and frivolous arguments in federal court” about widespread election fraud.

“There is real harm in abusing the legal process like this,” Mr. Harrow said. “It wastes taxpayer money and judicial time, and it lets people think there’s really something to these claims when there’s obviously not.”

Mr. Harrow argued unsuccessfully before the Supreme Court defending a 2016 Colorado elector who switched his Electoral College vote in a scheme to stop Mr. Trump from becoming president.

The Trump campaign did not respond to questions about Mr. Giuliani’s lead role in the litigation.

Tom Fitton, president of the conservative watchdog group Judicial Watch, commended Mr. Giuliani for going into a jurisdiction where he isn’t licensed and developing a rapport with the judge.

“He hasn’t practiced in the courtroom for decades, but he did fine,” Mr. Fitton said. “Giuliani is an effective advocate, and the left hates him for it. He is taking a stance on a civil rights issue.”

Mr. Giuliani is not an expert in election law. Until Tuesday, he hadn’t argued for a client in a courtroom in at least 30 years.

The case Mr. Giuliani argued in Pennsylvania is one of a series of federal court challenges aimed at reversing the results in battleground states.

Prominent Republican election law specialists, including Benjamin Ginsberg, who argued the landmark Bush v. Gore 2000 election case before the Supreme Court, criticized the Trump lawsuits for lacking evidence and failing to demonstrate the extent of any fraud or miscount was enough to change the outcome.

“So far, in the evidence presented by the Trump campaign, there is not close to enough to overturn the results of the election,” Mr. Ginsberg told PBS’s “NewsHour.”

Before Judge Brann, Mr. Giuliani called for more than 600,000 Pennsylvania ballots to be tossed out. He said the ballots were sullied as part of massive, widespread voter fraud in the Democratic-run cities of Philadelphia, Pittsburgh, Milwaukee and Detroit, where Republican poll observers claim they were blocked from viewing the vote count.

Mr. Giuliani was helped during the oral arguments by Ms. Kerns, who was still on the case despite her attempt to get out.

At one point, the judge told Ms. Kerns she should be happy he did not approve her motion to withdraw after she answered a pointed question posed by the judge.

Still, Judge Brann expressed skepticism of the president’s claims.

“I don’t think Giuliani performed very well,” said University of Pennsylvania Law School professor Kermit Roosevelt. “In part, that’s because he had a very weak position to defend, but he also did not seem fully up to speed on the details of the case, probably because he had just joined.”

He predicted that Mr. Trump would lose the case.

“Putting Giuliani in charge was probably the best move available for the Trump campaign since their other lawyers kept dropping out, but they simply have no viable legal way forward,” he said.

Ms. Kerns filed a motion to withdraw from the case two days before the hearing. The judge did not approve her request.

Before her request, Ms. Kerns received a threatening voicemail from a lawyer working at Kirkland & Ellis LLP, the same firm as Daniel Donovan, who represented Pennsylvania Secretary of State Kathy Boockvar, a Democratic defendant.

Ms. Kerns had asked for sanctions against the attorney, who she said left the threatening one-minute voicemail on the morning of Nov. 14.

“Since this case was filed, undersigned counsel has been subjected to continuous harassment in the form of abusive e-mails, phone calls, physical and economic threats, and even accusations of treason — all for representing the President of the United States’ campaign in this litigation,” Ms. Kerns wrote in her request for sanctions.

Judge Brann replied that the voicemail was “bad form” but added, “It is not a sanctionable matter.”

Mr. Giuliani chimed in that Ms. Kerns needs protection.

The judge said the harassment was “regrettable” but not a threat.

“The word I would use would be ‘mockery,’” said Judge Brann.

⦁ Alex Swoyer contributed to this report.

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