Thread by @RMFifthCircuit

OK, I am theoretically in this MD Pa. motion to dismiss hearing conference call. Right now we've got some snappy hold music. But if I'm in, I will live-tweet.

We're still happily bopping around over here. But no hearing.

OK, we're on! "We will begin" says a voice. But what will begin? A polka dance? Hold 'em tourney?

The Judge has taken the bench.

Rudy is actually going to try to talk!

We're just taking appearances of counsel right now.

We can hear the judge very well, but hearing counsel is going to be a challenge.

The Judge asks counsel to give the court reporter business cards. Random law advice: always do this. Introduce yourself to the reporter, and give your name/card, especially if you are a weird foreigner like me.

Judge confirms that there are only two claims left after the complaint was amended (equal protection and elections and electors' clause)

And Judge confirms that there is no standing for the elections and electors' clause claims under controlling Third Circuit precedent.

Rudy is about to try to argue.

Rudy: "the best description of what we're alleging ... is widespread nationwide voter fraud."

He quotes Rahm Emanuel for those reason, and then says the democrats took the opportunity of the COVID crisis to commit fraud through vote by mail.

"We're going to prove that President Carter was a prophet"

Rudy is telling crazy lies about democrat voter fraud machines.

I had to jump off for a Fifth Circuit oral argument practice.

Guiliani claims, inexplicably, that he has "twice as much" evidence this week as last week (nonsense).

"Why do we come to a federal court? Because a federal court protects people..."

OK, buddy.

"Where else should we come?"

This is a confusing digression.

Rudy says that these 680,000 ballots were entered without a republican being able to see it.

Rudy yells that this is a "disgrace."

Rudy does a weird laugh to illustrate Philadelphia election officials attitude to law.

He's yelling something about binoculars and telescopes

Rudy is now ranting about some complaints about how close they were to the ballots.

"This is America?" says local man out of his depth.

I don't hear the judge laughing, so I commend his poker face.

"If this allowed without serious sanctions, this is going to become an epidemic."

No, Rudy, the epidemic is what is raging around the country because of your boss.

"They stole an election. What are they going to steal next?"

Rudy wraps up with "It's a case! It's a controversy!"

OK, then.

No wait, Rudy says "we've written down 300 statements" and some pictures.

He showed up in Court with a bunch of pictures but they're not in the complaint and he hasn't shared them with anyone and he's trying to hand them to the judge (no).

Rudy is trying to mark things as exhibits as a motion to dismiss hearing. OK then.

Rudy makes a crack about how he used to be a clerk, and says maybe he can go back to that if he needs a job "after this."

This judge has extreme patience. He's letting Rudy ramble and mark exhibits and describe them. It's ... a little sad.

The Judge says he intentionally did not allow Pennsylvania counsel to withdraw because he has "some questions."

Now, Daniel Donavan for the PA Secretary of State (I think).

Donavan starts by pointing out all the things that Trump simply can't and hasn't alleged, and noting that we're down to this one equal protection cause of action.

He says that Trump's claim just isn't an equal protection claim. "No court has ever recognized a claim like this one."

By the way, Donavan has a slide deck. Rudy ... did not.

"Plaintiffs lack standing to support the equal protection claim."

This means: these particular plaintiffs are not allowed to sue about the things they're complaining about.

Donavan is just going through his arguments. The judge is not asking any questions yet. He seems to be the kind who lets the lawyers talk first before asking.

I don't have much to say right now because this argument is very straightforward and the judge isn't saying anything.

He's now citing Judge Hanen's no-standing decision here in the Southern District of Texas (in the drive-through voting case).

Donovan sarcastically points out that he "just a lawyer" but he read the complaint and doesn't see the crazy numbers of ballots Rudy was yelling about.

OK, we're moving to the merits of the equal protection claim, although Donovan tells the Judge to stop with standing.

Oops, went silent? Anyone else?

Well, all I've got is static. Hopefully someone calls the Court and tells them it's messed up.

OK, a voice tells us we're about to start back up.

The judge is back on the bench.

Donavan is just picking up where he left off - patiently explaining why there is no equal protection violation.

Now someone named Mr. Aroncheck(?) talking about abstention . But he is going to deal with a few other points first.

"Mr. Guiliani hasn't read Judge Rogers' opinion nor has he understood it." (one of the PA state court opinions)

Aronchik just flogs Rudy for talking about a case that exists only in a "fantasy world."

Aronchik calls Rudy's theory about equal protection "total nonsense."

Aronchik makes fun of Rudy's claim that he remembers something about standing from law school "But he doesn't remember how standing is applied in the actual cases."

Aronchik is standing for all of us laughing at Rudy's insane claims. "This is disgraceful" Aronchik says.

I see there's some discussion about whether Aronchik is being too harsh on Rudy. It's harsh, but I don't think it crosses a line. Someone has to say on that side this is crazy.

Lawyers have different styles. And some righteous anger sometimes is important. I don't have a beef with it.

You also have to remember: I'm told this is a very prominent local lawyer. He likely knows the judge and knows how far to go.

I've no inside info. But that is a thing.

The Judge tells Mr. Aronchik not to move so much because he's breaking up.

Ah, so Aronchik is on zoom rather than a conference call.

Aronchik "pleads" with the Court to grant the motion to dismiss. "Please" he says.

We're taking a 10 minute recess. I'm taking a bike ride, so may be off for a file.

We’re back. Lawyers are briefly addressing more tangential arguments.

This is very much my appellate lawyer side coming out, but this is too much oral argument and too little answering questions.

The points being made now – that these challenges are too late – would be dispositive to me if I were a judge. How can you bring these claims after you know you lost?

It’s just such an easy and clean dismissal. Laches. Too late. How can you bring this claim now?

Is the judge really going to let Rudy do a rebuttal? I suppose so, but what a waste of time.

Ok, finally some questions. The judge asks Trump lawyer “how it could possibly be justified to invalidate 6.8 million votes?”

I think Rudy is yelling something but I can’t hear him.

Ah, I can hear him now: nonsense about a “planned violation” of election law. It’s a violation that’s “never happened in American history.”

This is, to be clear, completely insane.

Rudy says “the ballots might have been from Mickey Mouse”. No idea what that means.

None of this is an answer to the judge’s question.

Rudy keeps yelling “throw it in the bin” about ballots.

Rudy says he is “aggrieved” by having been made fun of. Join the club, Rudy. We are all aggrieved by you.

Rudy says he doesn’t know what “opacity” means. I guess it’s a joke?

The judge wants to move on but Rudy cuts him off and says more stupid stuff.

The other lawyer, apparently realizing Rudy went off the rails, decides to talk, but it’s if possible less persuasive than what Rudy said.

The judge literally said he had a different question but the lawyers are still talking. This is… not how you deal with a judge.

Opposing counsel points out that Rudy spoke for 10 minutes and didn’t answer any questions.

Next Q: “in the amended complaint you constantly talk about voter fraud. But neither count seeks relief for voter fraud. Right?”

Rudy says he is, even though it isn’t.

The judge says “great, so don’t you have to satisfy Rule 9b, heightened pleading?”

Now Rudy is trying to crawfish away, and now claims he isn’t pleading fraud.

Next Q: “why are you suing the defendants for things that different counties did? The defendant counties didn’t hurt your individual clients at all.”

A note: there is no actual answer to this, but the Trump non-Rudy lawyer is saying some words, but they are not in an order I totally understand.

This is such total nonsense, I am in pain.

Rudy is trying now. He’s just explaining his equal protection claim, but not why he’s suing Philadelphia and not Lancaster County.

The judge is trying again, because self evidently there was no answer:

“Could you explain how the secretary of the commonwealth’s actions effect your voters in Lancaster County?”

I can’t make up my mind whether Rudy is more useless or this other Trump lawyer.

Next Q: the judge moves to the merits on equal protection. “Can you clarify whether the campaign has its own equal protection claims or if they are derivative of the voter’s claims?”

“Both” says the Trump lawyer. (They did not understand the question, evidently)

The answer can’t be both. The lawyer had to say it’s the campaign’s own equal protection injury (although this is banana pants nuts)

Next: “why does the campaign have standing to vindicate the individual plaintiff’s rights, when they have their own ability to do so?”

Rudy has now realized he has to say it’s not derivative of the individual plaintiffs, like I said in the previous tweet.

Look, I don’t know what the judge is going to do, but right now he is systematically annihilating Trump.

“Is there any precedent you can cite from this circuit supporting your theory of competitive standing?”

Rudy has some guy speaking in response who is talking about some case from 1993 where HE was the plaintiff. I have a feeling there is literally 0% chance this case addresses competitive standing.

The idea that the one relevant case is one where the plaintiff from 30 years ago is literally sitting in the room is hilarious.

I mean, this dude probably just lied to the judge. The judge noted “great. I will look it up.” Lol. He will indeed.

Donavan stands up and says “the word competitive does not appear in this case Rudy” cited. Of course it doesn’t. The judge points out that he certainly hadn’t found such a case in his own research.

“What standard of review should I apply?”

Rudy: “The normal one.”

I can hear the judge’s befuddlement from here. The normal one is not the answer. He wanted “strict scrutiny” or intermediate scrutiny.

Rudy has no idea what levels of scrutiny are. Like he hasn’t heard of them.

“How are your individual plaintiffs denied the right to vote when they filled out their ballots incorrectly?”

“If I conclude that rational basis applies, why don’t they satisfy that standard?”

Rudy: “how is this rational?”

That isn’t the answer Rudy.

Ok, defendants are talking now. It’s rational basis review (Defendant’s lawyers know what the standard of review is)

Now Qs to defendants, started with whether one of the cases applies here because the facts are somewhat different.

“Why doesn’t the Trump campaign have standing here? Sum it up for me.”

That’s the question you ask when you want to write the opinion and just want to make it clear.

Asking about Pullman abstention. Again, judge is cleaning up his opinion through these questions, in my view.

Now we’re doing Rooker Feldman. I think this is correct that it doesn’t directly apply.

Aronchik brutalizes the citation of that case by Plaintiff.

Judge asks for an opposition brief to the motion to dismiss by 5 pm tomorrow.

Rudy misunderstands and thinks he’s asking for an amended compliant. No.

Judge tells plaintiff should file a new PI motion since there is not a pending one right now. Again, by 5 pm tomorrow.

Judge is setting up a briefing schedule through Friday the 20th.

Rudy wants to file a Second Amended Complaint. The judge asks “did you actually file a motion for leave?”

No. He did not.

This is hilariously bad.

Rudy does not understand he needs to file a motion for leave before filing the amended complaint. He keeps saying he wants to file it.

Ok, we’re on to the rude associate’s voicemail to the Trump lawyer. It’s bad form, but not a sanctionable matter. Tell this guy the lawyers have a right to represent whoever they want.”

“Tell him he wasted the time of a very district federal judge. Someone should have a chat with him.”

The judge admonishes everyone to chill.

“I’m sorry you were affronted by this call. I’m sorry this happened to you. But that’s it.”

The Trump lawyer whines some more about being offended. The judge: “so noted.”

Ok. I dropped off. This is done.