Trump campaign files narrow appeal in Pennsylvania

 

Pennsylvania Secretary of State Kathy Boockvar is set to certify the commonwealth's election results Monday. | Julio Cortez/AP Photo

 

LEGAL

Trump campaign files narrow appeal in Pennsylvania

 

It is seeking permission to reframe its argument again.

 

By JOSH GERSTEIN

11/22/2020 11:26 PM EST

https://www.politico.com/news/2020/11/22/trump-campaign-files-narrow-appeal-in-pennsylvania-439500

 

President Donald Trump’s campaign filed a narrow appeal Sunday in its longshot bid to have Trump declared the victor in the presidential race in Pennsylvania despite lagging more than 71,000 votes behind President-elect Joe Biden.

 

With Secretary of State Kathy Boockvar set to certify the results of the election as soon as Monday, the Trump campaign filed an emergency motion with the Philadelphia-based 3rd Circuit Court of Appeals asking that court to compel a lower court to accept a redrafted complaint contending that election officials excluded observers as part of an effort to process thousands of flawed mail-in ballots that largely favored Biden.

 

The campaign did not seek an immediate order from the 3rd Circuit to block certification of Biden as the winner. Instead, the motion filed with the court Sunday evening said the campaign might seek decertification of the results “if already certified.”

 

While the Trump campaign was expected to mount a broad assault on the scathing ruling U.S. District Court Judge Matthew Brann issued Saturday dismissing the suit as collection of “strained arguments ... and speculative accusations,” the new filing with the appeals court said Trump’s team was seeking to appeal only what it called the “narrow issue” of whether it should have had a second chance to reframe its suit.

 

Brann denied the campaign permission to do so, saying that allowing that would “unduly delay resolution of the issues.”

 

Several prominent legal experts expressed puzzlement Sunday at the Trump lawyers’ approach.

 

“Just bizarre and weak,” said Rick Hasen, an election law specialist and law professor at the University of California at Irvine.

 

Trump campaign attorney Brian Caffrey emphasized in the filing that the campaign was not seeking to nullify every vote cast in the state, despite suggestions that the state legislature take over the naming of electors due to alleged taint of the Nov. 3 election.

 

“Appellants seek to exclude the defective mail ballots which overwhelming favored Biden, which may turn the result of the Election. Appellants do not seek to exclude any legally cast votes,” wrote Caffrey.

 

The appeal came amid continued turmoil on Trump’s legal team, which has seen almost daily turnover during the last couple of weeks.

 

On Sunday, the Trump campaign announced it was cutting loose bombastic attorney Sidney Powell, who joined lead Trump attorney Rudy Giuliani at a bizarre press conference in Washington on Thursday airing unsubstantiated allegations of widespread fraud and international interference in the election.

 

Powell’s ouster came after she reacted to the dismissal of the Pennsylvania federal suit Saturday with an interview leveling even more improbable claims that Georgia Gov. Brian Kemp, a Republican, is involved in a conspiracy to deny Trump re-election.

 

Powell had never formally signed on as counsel in any of the Trump campaign’s various lawsuits, which have found little traction in court. The only attorney who signed the motion filed with the 3rd Circuit on Sunday was Caffrey, an associate of Marc Scaringi, a lawyer and former GOP Senate candidate who joined Trump’s legal team just a week ago.

 

Scaringi took to Twitter on Sunday night to note that Harvard Law Professor Alan Dershowitz has said the campaign has some viable arguments that the treatment of mail-in ballots differently in various parts of Pennsylvania give rise to an equal protection issue under the Constitution —a similar contention to the basis the Supreme Court used to shut down the ballot-counting process in Florida in 2000 during the Bush v. Gore litigation.

 

“We do have strong legal arguments, according to one of the top constitutional scholars in the world,” Scaringi wrote. “Yes, I was skeptical too at first. But then I studied the law even more closely, read the pleadings and the many affidavits and became convinced in the merits of the case.”

 

Trump’s campaign is proposing a schedule for legal briefing on the appeal through Tuesday and potential oral arguments on Wednesday, but said in its filing Sunday that the defendants in the case — Boockvar and seven Democratic counties — had not agreed to that timeline.