Thread by @Teri_Kanefield

This is the one I wrote about here, terikanefield-blog.com/what-the-heck-…, the one in which Giuliani made the unhinged argument in that some counties allowed voters to fix errors, and others didn't, therefore THROW OUT ALL THE BALLOTS.

1/

https://twitter.com/kyledcheney/status/1332375530843336705

Here is the decision: assets.documentcloud.org/documents/2041…

Other people are quoting the scathing language and the fact that the decision was unanimous and written by a Trump appointee.

In other words this is a 🔥.

So I'll talk about what a 🔥 this is from a different angle.

2/

Team Trump filed a complaint in the federal district court arguing that the election was flawed on Constitutional grounds and should be overturned.

The reason for making the argument on Constitutional grounds was that they were hoping the Supreme Court would take it.

3/

The Supreme Court decides Constitutional issues. Team Trump (not understanding Bush v. Gore and how their arguments are entirely different) thought that if they challenge the counting on constitutional grounds, they get a fast pass to the Supreme Court. . .

4/

. . . where they assumed Trump loyalists would hand Trump the election.

Constitutional argument was so silly and defective that Giuliani didn't even understand the levels of scrutiny in equal protection cases.

The arrogant conceit was that this wouldn't matter.

5/

Once they got to the Supreme Court and PRESTO, Trump loyalists would hand him the election.

After Team Trump filed their complaint, the Democrats filed what's called a motion to dismiss for failure to state a claim.

This is one way to get rid of frivolous lawsuits . . .

6/

. . . before courts waste time.

It's usually really hard to get a case dismissed this way because courts liberally construe pleadings.

All plaintiffs have to do is allege one valid cause of action and that they have evidence, and they get in the door.

7/

The lower court granted the motion to dismiss. The case was literally thrown out. 🔥

But that's not all.

The lower court dismissed the claim with prejudice, which I understand is very rare (I've personally never seen it.)

Dismissing without prejudice means . . .

8/

. . . the plaintiffs can refile the case and fix whatever defects they made. (This is why most people don't bother trying to dismiss at this early stage; it allows the plaintiffs to fix their errors and focus their arguments.

This court dismissed WITH prejudice . . .

9/

. . . which means that the plaintiffs cannot refile.

This is a triple burn because the court said this case was so defective that it can't be fixed so go away and don't come back. 🔥🔥🔥

When Team Trump appealed, they appealed a decision to dismiss with prejudice.

10/

They asked the appellate court to overturn the lower courts refusal to give them "leave to amend" their complaint.

They just want to refile so they can get started.

The appellate court said no.

Not only that, the court won't even let them present oral arguments 🔥🔥🔥🔥

11/

(I put four burns after that one 😂)

I thought the court might allow oral arguments, not because the case was worthy, but because you know, they might want to give deference to the US President. . .

but noooooo. Burn!!

"Now what?" you ask.

12 /

Can they take this to the Supreme Court?

I have literally never heard of SCOTUS evaluating whether a lower court abused its discretion in throwing out a case and not allowing leave to amend.

Remember, this is what was appealed ⤵️

Not the merits . . .

13/

Are you all taking notes? I hope so, because this will help you all with the civil and appellate procedure portion of the Twitter Bar Exam.

(Yes, there will be test.)

Anyway, if Rudy takes the case to SCOTUS, it will be to fleece Trump for the money (if Trump is paying).

14/

Suppose he does.

And suppose SCOTUS agrees to hear the appeal. The issue is narrow: Should Trump be allowed to refile a second amended complaint in the district court?

If the Court takes the case and says yes, all it means is Team Trump gets to refile their lawsuit.

15/

The Supreme Court can't decide on the merits because there hasn't even been a trial.

If SCOTUS hears it, and IF they reverse the appellate court's ruling (which they WON'T because that would be stupid), Trump files another lawsuit and then . . .

16/

. . . the Democrats file another motion to dismiss the case, the lower court dismisses the case again, and the whole loops starts over. 😂

https://twitter.com/markmumford2008/status/1332381268156194817

Hey! I think I set a record for fast typing.

17/

I'll put @Popehat's tweet here because it's the perfect ending to this thread.

Yup, Team Trump is right on top of this! Five-dimensional chess if ever there was [sarcasm]

https://twitter.com/Popehat/status/1332382522953461761

(seeking cert = appealing to SCOTUS]

Yes, after filing this appeal, they realized they forgot to ask for a stay in the certification, so the next day they filed a TRO (which makes no sense) and an injunction to stop the certification pending the outcome of the lawsuit . . .

https://twitter.com/Corteran/status/1332476673208578048

. . .even though THERE WAS NO LAWSUIT because it had been tossed out on a motion to dismiss.

(Also, TROs are for trial courts, not appellate courts.)

But the appellate court refrained from sarcasm simply denied the injunction for a bunch of reasons.

Why a bunch of reasons?

Because there WERE a whole bunch of reasons the request was stupid, and so the appellate court listed each one because that makes it harder to overturn it on appeal:

Team Trump has to argue against each.

If any one is deemed valid, the ruling stands.

I should have called this thread "Fun with Appellate Procedure."

I put this up on my blog, along with an answer to a question readers had about Section 230.
terikanefield-blog.com/trumps-legal-t…