It should be noted that the opinion in the Pennsylvania case that seems to have soured Trump on his vaguely-lawyer-resembling conspiracy theorists is about as brutal and precise a beatdown as you’re going to see in a judicial opinion this side of Ginsburg’s dissent in Shelby County. (It’s also worth noting that Judge Brann, despite being an Obama nominee, is a Federalist Society conservative.) Particularly striking is his repeated reference to the incompetence and bad faith of Trump’s counsel:
Judicial opinions are typically staid documents that avoid direct criticism of legal advocates — both as a professional courtesy and because judges typically want to avoid giving the impression that their disregard for a particular lawyer may have influenced their decision. But Judge Brann clearly believes that Trump’s lawyers behaved egregiously in his courtroom, and that this conduct is worth noting repeatedly in his opinion.
Early in his opinion, Brann summarizes the lawsuit in ten damning words: “Plaintiffs ask this Court to disenfranchise almost seven million voters.” The mere fact that Trump’s lawyers would even request such a thing is audacious. As Brann notes, “this Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated.”
And yet, Trump’s lawyers did not come to court with any evidence or legal authorities that could justify such a result. “One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption,” Brann writes. But “that has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”
Brann also spends an entire section of his opinion describing the game of musical chairs that Trump’s lawyers appeared to play while they were actively litigating the Boockvar case. “Plaintiffs have made multiple attempts at amending the pleadings, and have had attorneys both appear and withdraw in a matter of seventy-two hours,” he writes. On the eve of oral arguments, Trump attempted to replace his entire legal team. Giuliani was added to the team on the same day as the hearing where the former New York City mayor appeared unfamiliar with basic aspects of the case.
At other points in his opinion, Brann calls out the Trump legal team’s inability to explain essential parts of their legal argument. In order to bring a case in federal court, for example, a plaintiff must show that they were injured in some way by the defendant — a requirement known as “standing.” Yet, as Brann writes, “the standing inquiry as to the Trump Campaign is particularly nebulous because neither in the [campaign’s amended complaint] nor in its briefing does the Trump Campaign clearly assert what its alleged injury is.”
That led Judge Brann to “embark on an extensive project of examining almost every case cited to by Plaintiffs to piece together the theory of standing as to this Plaintiff — the Trump Campaign.”
Thus, despite the harsh rhetoric in his opinion, Brann was extraordinarily generous to the Trump campaign and its lawyers. Rather than simply taking the incompetent arguments that were presented to him and rejecting them out of hand, the judge took the time to construct a coherent version of Trump’s lawyers’ arguments — and then he rejected that better version.
I could continue to beat this horse, but it’s already dead. Election law professor Rick Hasen said of Giuliani’s appearance in Brann’s courtroom, “I’ve never seen worse lawyering in an election law case in my life.” And Brann’s opinion makes it clear just how bad the Trump campaign’s lawyering was.
Having said that, the quality of the lawyers isn’t really the point here; it’s the effect rather than the cause. Zombie Daniel Webster wouldn’t be able to do better with this shit.