The first argument is the mootness problem we've all been discussing. The DNC makes neat work of Trump's claim that the case isn't moot because you can just "decertify" - not a thing, the DNC says.
Similarly, the DNC says, if you want an order saying the legislature can choose the electors, no one who could possibly do that is a defendant in this suit.
I can confirm, this is normally a big problem for a lawsuit.
Why was the district judge correct to deny leave to amend a second time? Because Rudy/Trump (Rump?) themselves created chaos and delay.
The story the brief tells of Rudy's hijinks is very effective. Like I said earlier, there's no name-calling here. You can just lay it out.
Calling what Rudy and co. did a "procedural morass" undersells it!
Here is the part of the brief Rudy did not anticipate at all - the argument that any amendment is futile. Trump's argument was, if you agree with us about the delay stuff, then you have to reverse. That's not true at all.
I was curious what they'd say about the due process claim Trump was trying to add - here's that.
True! Again, there are a lot of fiery words you could write about these allegations, but this works better.
Helpfully eviscerating the claim that some counties doing a better job helping citizens vote is a due process violation
Now we get to where the DNC explains that disenfranchising the entire state is bad.
And finally, the notion that Trump should be allowed to audit millions of votes is taken care of.
In summary, on first read, this is exactly what you'd expect. A level-headed, technically very strong brief that shreds Trump's claims and gives the Court a clear roadmap to write a short (or long, if it wants!) opinion ending this v. dumb litigation.
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I was listening to a podcast tonight, and the guest said, in explaining that he thought Rudy’s out of court statements were worse than what he said in court, that it’s ok if a lawyer makes outlandish arguments in court because those are subject to dispute and testing 1/
I think that’s a common thought - that a lawyer representing a client should say whatever to help their client, and if they’re lying the other lawyers will catch them.
No. Yes, you can make arguments that are not 100% winners. One lawyer word we use for that is colorable.
But you can’t go in there and make up lies. You have an independent obligation as a lawyer not to lie to the Court, even if the lie helps your client. What Rudy and co. were doing was not zealous advocacy. It was deeply offensive to the way law is supposed to work.
So this is a signature Raffi-Stapled-to-his-Pompous-White-Horse moment, but the more I do this work, the less likely I am to actually voice the unkind thing about my opponent that I'm thinking in an email or in person, even in private.
A couple of things. Yes, sometimes OC really is a chickensh$#. That's even true if they are a really good lawyer who you are cordial with and get along with. I am sometimes to. It's a given.
Nonetheless, I think you should try to limit this stuff. And it's not just 2/
because sometimes what you said slips out in a reply-all or maybe the person you said it to repeats it to someone else.
I'm having trouble explaining it exactly, but I feel better about my practice when I'm not mad in that way at OC. Yeah, they're representing their client
So, first immediate thing: we’re now back to the only issue on appeal being the denial of the motion for leave to amend, it seems.
This confirms my previous tweet. Note, this is their only shot on appeal. There's not like, some other brief where they can challenge the trial judge's decision on the First Amended Complaint. By filing this brief, they are done on that.
Ok, so the 3rd Circuit is adopting the briefing schedule. Time for fun!
My reaction: I’ve said this before, but Courts are quite likely to give the President a lot of procedural leeway. That’s why Judge Brann let Rudy babble for 2 hours before ripping him apart. They don’t want to be seen throwing the President out on technicalities. /2
So of course, they could just have denied the motion to expedite, but then they’d be criticized for not giving the President a chance. Instead, they’re saying “oh you want to file a brief today? Have at it.”