Thread by @ZoeTillman

Hello from my dining table, where I'll be covering the 1:30pm hearing in the Trump campaign's case in federal court in PA seeking to block certification of the election results.

Background on where things stand for Trump in this case and in PA generally: buzzfeednews.com/article/zoetil…

The court has made remote audio access available to the public, the dial-in information is here: pamd.uscourts.gov/sites/pamd/fil…

Current status: jamming to the hold music

The newest member of Trump's legal team to enter an appearance in court, Rudy Giuliani, is there, per @joshgerstein

https://twitter.com/joshgerstein/status/1328765039285825541

Final update to this check of Giuliani's bar/court admissions, per his application to join the PA case — SCOTUS confirms he was admitted to that court's bar in 1979

https://twitter.com/ZoeTillman/status/1328742316518100992

US District Judge Matthew Brann has taken the bench in the Trump campaign's federal court case in Pennsylvania, we're off

Brann confirms that Giuliani has been admitted pro hac vice, since he's a member of the NY bar and at least one federal court (SDNY). Giuliani asks about wearing a mask while speaking, judge says it's up to him. The other lawyers are introducing themselves now

Judge asks Giuliani to confirm the counts removed in the amended complaint, after the 3rd Circuit opinion. Giuliani confirms, but says they're preparing to add a due process claim back in that they thought was improperly cut

Giuliani begins his argument by saying that what they're claiming is "widespread, nationwide voter fraud, of which this is a part." (There has been no evidence to date of widespread, nationwide voter fraud in the 2020 election.)

Giuliani argues that the expansion of mail-in voting this year is an example of officials taking advantage of a crisis, the pandemic. Now he's arguing there's a history of voter fraud in Philadelphia, along with other big US cities

Giuliani is focusing on the observer access part of the case, making sweeping allegations that lots of cities refused access to inspect ballots. But recall the campaign cut the counts related to observer access, and only left the ones focused on notice/cure process

Giuliani, on standing, argues the Trump campaign is in a different situation than the plaintiffs in the 3rd Circuit case because there has been harm — that they've been treated differently because Republican observers didn't get access to observe ballots in Dem parts of PA

Giuliani is painting a portrait of a coordinated conspiracy by the Dem "machine" in Philadelphia to allow voters to cure defective mail-in ballots and put observers too far from the counting tables to see properly, in contravention of PA law. "This is an outrage, your honor"

Giuliani has now upped the number of ballots they claim were counted without lawful observation and are therefore illegal, from 682,479 in Allegheny/Philadelphia counties to 1.5 million across seven counties — he hasn't specified where those numbers come from

Giuliani claims they have "hundreds of affidavits" to support their claims, and then clarifies it's about 300 affidavits, declarations, or statements that they have "written down"

Giuliani is now entering photos as exhibits into the record, asks aloud if he's doing it right, quips, "In case I need a job after this."

He describes the photos as showing how far away observers had to stand at counting sites, one woman trying to use binoculars

Judge Brann asks if Linda Kerns, the Trump campaign lawyer who asked to withdraw last night, has anything to add. Kerns says no and that she is deferring "to the new counsel’s strategy" — she and Giuliani note that she's still repping the campaign in state court actions

Daniel Donovan, lawyer for PA Sec. of the Commonwealth (I see you commonwealth), begins by saying the 11/23 deadline for counties to certify votes is fast approaching, and noting that much of Giuliani's args are about observer-related allegations cut in the amended complaint

Donovan says the campaign's case has no claims of ballots being counted multiple times, of people voting who weren't qualified, or other issues with people voting illegally — basically, no allegation of voter fraud that would fall under an equal protection claim

Citing the recent 3rd Circuit decision, and other cases out of PA (including an earlier one Trump lost pre-election), Donovan argues a theory that some invalid votes "dilute" other votes isn't the kind of "concrete" or "particularized" injury that gives someone standing to sue

Re: the two individual plaintiffs (separate from the Trump campaign) who allege they were harmed b/c their counties didn't allow them to cure defective ballots, Donovan argues their remedy was to sue *those* counties, not others, like Philly, that allowed voters to cure ballots

Oh no - anyone else's line for the PA hearing just cut out?

Well, it appears all remote access to the hearing in PA has cut out, unfortunately. I'll update if we can get back on. Sigh.

The PA court posted on its website that it's aware the line cut out and is "working feverishly to restore access"

The intrepid @joshgerstein is at the PA courthouse (the court didn't allow press/public into the room, but said it would have a video feed at the courthouse in addition to remote audio access) and says they're taking a break to deal with the tech issues

https://twitter.com/joshgerstein/status/1328790472316301315

Update: The court has added multiple stars to emphasize the message on the homepage explaining that they are "feverishly" working to resolve the tech issue that caused remote access to the hearing to cut out :(

Good news, the court sorted out the tech problem and posted new call-in information on the website: pamd.uscourts.gov I'm now connected and the hearing has just resumed.

PA's lawyer Daniel Donovan resumes his arguments, saying that general claims about differences in how counties are administering elections doesn't give rise to an equal protection claim in federal court

Donovan concludes his arguments by noting again that Giuliani spent a lot of time talking about observer access to ballot counting, but those sections were deleted (he repeats the word "deleted" a few times) from the campaign's amended complaint

Mark Aronchick, another lawyer for PA, is arguing now, and is citing the PA Supreme Court ruling that just came down and saying that knocks out what Giuliani was trying to argue re: observer access being a problem (notwithstanding the fact that the campaign removed those counts)

Aronchick says that Giuliani's arguments aren't about a case that is actually before the court right now, given what they removed from the amended complaint, and that he's in a "fantasy world"

Aronchick says they can't find a previous case where a court found there was an equal protection claim based on something that made voting easier — "we don't race to the bottom now"

Aronchick has grown heated during his arguments in addressing Giuliani and the campaign's claims: "This just is disgraceful"

(Also I was mistaken earlier - Aronchick is repping the PA county election boards that are named as defendants, not the PA SoS, but they're all on the same side of this)

Aronchick says Giuliani has no way of knowing the ballots that they say are at issue would swing the results for Trump. He gets worked up again, saying Giuliani's suggestion that more than 1M ballots should be tossed is "disgraceful"

Aronchick is arguing about "abstention" — the idea that the claims the campaign is pressing are really issues of state law that a state court should rule on, not the federal court

Aronchick is appearing remotely, and his connection is very choppy. The judge is advising him to try not moving around so much (oh what I wouldn't give for video of this hearing)

Aronchick: "Dismiss this case, please, dismiss this case"

Brann is taking a 10-minute recess and then will resume arguments

The hearing in the Trump campaign's case in PA federal court is back on ("10 minutes" is rarely actually 10 minutes)

Elizabeth Dupuis, a lawyer for Centre County, says campaign reps were present the whole time for counting, no complaints were raised. As for an alleged issue with a provisional ballot, she says the remedy is to go through the provisional challenge process, not this type of suit

Brann turns to Trump's legal team, questioning how they're asking for millions of votes to be invalidated: "Can you tell me how this result can possibly be justified?" Giuliani repeats his general claims of widespread fraud, says the scope of remedy is b/c of scope of injury

Giuliani says he is "aggrieved" by opposing counsel saying the complaint doesn't include allegations about observer access, and repeats language in the complaint referring to it. But he doesn't engage with the fact that they cut the specific counts related to that issue

Giuliani argues that they've preserved the observer issue because the equal protection count (which specifically addresses the notice/cure issue) also has a line that says it incorporates everything else above in the complaint

Brann drills down and gets Giuliani to admit that in the stripped down amended complaint they are *not* pleading fraud with "particularity," after the judge notes that they have to meet a heightened standard to do that

Giuliani had initially insisted that they were alleging fraud, based on the "scheme" or "plan" they laid out in the complaint re: denying GOP poll watchers meaningful access to watch ballot counting, but the judge gets at the fact that they're not seeking relief from fraud

Brann is asking why the individual voters who claimed their rights were violated b/c their county didn't give them a chance to cure their ballots pursue those claims. Kerns says skeptically that would involve individuals suing their county. Brann: "Well, yes."

Brann asks why those voters wouldn't just file a claim in state court specific to their situation. Kerns said they pursued an equal protection claim to protect the rights of all voters in the commonwealth who were affected by counties handling notice/cure differently

Brann is asking why the Trump campaign has standing when there are voters in the case who are capable of trying to vindicate their own rights. Giuliani tries to connect the fact that the counties that permitted ballot curing (a la Philly) are also Democratic-leaning

Brann asks again about the Trump campaign's standing theory. Giuliani's response is not the easiest to follow/summarize, but he's basically saying Trump was treated differently (hence an equal protection claim) because the way PA ran the election benefitted Biden and hurt Trump

Brann asks what standard of review he should apply in considering the merits of the case. Giuliani says it's not strict scrutiny, which would be a high bar, because (and it's very notable that the judge gets him to say this, clearly) "this is not a fraud case"

Brann asks if the standard is rational basis scrutiny, why doesn't PA's actions meet that? Giuliani responds it wasn't "rational" to allow different cure processes across the state. He doesn't address the standards of rational basis review, which involves balancing govt interest

Giuliani's answer to this line of questions was also to say "normal scrutiny," which is not a thing

https://twitter.com/ryanjreilly/status/1328838991915995137

I'll be offline for the next 30 minutes because the baby's bedtime is sacred time — see ya in a bit. Check out @Tierney_Megan @ryanjreilly @KlasfeldReports @alanfeuer @ChrisMegerian and many others doing excellent live tweeting!