Thread by @AkivaMCohen

The Third Circuit has obliterated Trump's Pennsylvania lawsuit. For obvious reasons, the opinion was written by the *Trump appointed* judge on the panel, Stephanos Bibas.

Gonna break down the opinion shortly. But an important note, first:

People NEED to stop assuming that judges appointed by Republicans are unqualified hacks. Are there some? Yes. Some of the nominees have been egregiously bad. But for the most part, Trump judges are judges. Committed to the law, & doing their best to follow it. Internalize that.

Start here, with the opening. Some basic points being made:

1) You can't just show up in court and say "I was robbed." You need to allege specific facts from which a jury could *find* you were robbed. This is the civil procedure rule known as Twiqbal

It comes from two cases, Twombly and Iqbal, that effectively changed the rules of civil procedure from a prior rule which was more permissive. These decisions came down in the 2000s, after Rudy had stopped practicing law, and it's been clear throughout he doesn't know them

2) The opinion points out, AGAIN, that the Trump campaign *expressly disclaimed in open court* any argument that PA's vote was impacted by fraud. Rudy did that because of a *different* rule of civil procedure - Rule 9 - that requires much more detail for fraud claims

That was strategic. Rule 9 - the heightened pleading standard for fraud - is a longstanding rule that Rudy actually knew! <gives Rudy a cookie> And he knew the Trump campaign couldn't satisfy it. So he said "we don't have to, this isn't a fraud case"

But that has an impact. You don't get to say "this isn't a fraud case, so we don't have a heightened burden in our complaint" and then turn around and say that fraud requires voiding the election. You can't have it both ways. They chose "no fraud" - they've gotta live with that

So at the time of the motion to dismiss, the claim was only about whether Trump poll watchers were treated appropriately under PA law - an issue that was already decided by the PA Supreme Court, which is the ultimate authority on what PA law requires

3) Rudy then piled up another strategic blunder: He didn't bother appealing the dismissal itself, just the District Court's decision that the Campaign couldn't file new and different claims.

In other words, for purposes of the appeal the Trump Campaign *conceded* that the dismissed claims hadn't alleged anything that could be heard in court. The only question the 3d Cir had to worry about was "should the court have let them try again on new claims"

Now, about those new claims:

These are just not federal issues. You can't make an equal protection claim by saying "they treated both of us just as badly." And there's no federal law requiring poll watchers, or the details of what they have to be able to do, or opposing curing

To quote Sam Johnson, for my fellow threadnought sailors, this paragraph can be summed up thusly:

Why. Are. We. Here?

And the result: This stuff is nonsense. There's no there there. The claims are meritless, and what they're asking for is crazy

So:

Gotta take a break to put the little one down for a nap. I'll be back

Back. Just realized I never linked to the opinion itself - it's here if you want to read it (courtesy of Brad Heath, who I won't tag)

beta.documentcloud.org/documents/2041…

Next, Judge Bibas takes us through PA's election law. It's a relatively long section so we'll sum it up:

1) Counties have lots of discretion
2) They get to make rules about where poll watchers stand
3) They get to give notice of defects so voters can cure, if they want

That done, we get walked through the allegations and various amendments. Note the opening line: Any specific fact the Trump campaign alleged was taken as true. So: yes, some counties did notice & cure. Yes, poll watchers were kept back.

You may be noticing what looks like a contradiction (but isn't). "Hey! The campaign alleged a conspiracy to help Biden! If the court has to take the allegations as true, why not that one?" The court will get to that later, but for now, a preview.

"They did this as a conspiracy to help Biden" isn't an allegation of fact. It's a *conclusion* being alleged as *supported* by the factual allegations.

An example near and dear to my heart may make the distinction clearer. Anyone remember Asghar Bukhari?

Anyway, Asghar is a British Muslim political activist who was virally (and correctly) mocked for his youtube videos arguing that "Zionists and the Mossad" were trying to intimidate him by stealing his shoes.

Yes, really blogs.timesofisrael.com/mossad-stole-m…

Now lets take his allegation. Some of the things he said were facts within his personal knowledge: "Yesterday I had a pair of shoes. Today I can only find one"

Other things he said were the conclusion he drew from those facts: "Obviously, it was the Mossad"

Both of those statements are, at some level, "fact" claims; he was claiming that, *as a factual matter*, the Mossad was the reason he can't find his shoe. But for purposes of a pleading in Court, they're very different.

The first statement - yesterday I had two shoes, today I have only one - is a factual allegation the court has to take as true on a motion to dismiss

The second (therefore, it must have been JEWS) is a conclusion the Court can only consider if it plausibly follows from the facts

Here, allegations about notice and cure and where poll watchers could stand are *factual* allegations: This is a thing we saw happen. So on a motion to dismiss, the court has to assume that they did happen.

"Therefore it was a pro-Biden conspiracy", on the other hand, is not. Just like "therefore, the Mossad stole my shoes," it's a *conclusion* that the court has to assess for plausibility: Is this a plausible conclusion from the facts pled.

OK, with that out of the way, back to the opinion. Bibas sums up the various changes the campaign made to its case within a week and a half.

Again, there's a reason they assigned the Trump-appointed judge to write this opinion, and there's a reason that Trump appointee took the time to specifically commend Judge Brann on how he handled the case (note: this is NOT a common thing to see)

Temperatures around the country are way up. The Third Circuit is *clearly* hoping that having a Trump-appointee say unequivocally that Judge Brann got this right and the Trump campaign is looney tunes will help turn the temperature down.

Unfortunately, it won't.

I haven't checked, but I wouldn't be surprised if MAGA/Q twitter is *already* tweeting about what a traitor Bibas is, and perhaps questioning his heritage. I'm confident that they won't take this as meaning they're just wrong. Which is a shame

Last of the preliminaries: The appeal. Bibas lays out what is and isn't at issue on appeal, and provides the road map for the rest of the opinion. (Law students, take notice: this is very good legal writing)

Again, Judge Bibas is going out of his way to torpedo Trumpist arguments here. The standard of review is "abuse of discretion" - basically, "a sane human being could have made this decision." It's VERY deferential. He wants us to know that Trump loses even w/o that deference

This is a critical point. On appeal, the Trump campaign has argued that the 11/23 date is irrelevant, there was no rush, so the delay in seeking to add the new claims was no big deal. But in the court below, they argued the opposite: 11/23 was EVERYTHING

This is basic. Courts WILL NOT let you get away with arguing one claim in the district court ("this date is super important") and then arguing on appeal that the district court got it wrong because it *bought* that argument ("never mind, it erred in finding the date important")

The result?

Here's a lay translation of that:

Again, Bibas is *clearly* aware of and responding to the environment here. He could have stopped writing there. He said the court got it right, which means that the campaign loses. But he *does not want* to leave the Trump campaign any argument that it lost on a technicality

And as a result, we get this methodical dismemberment of the campaign's claims. Here's that "plausibility" stuff we discussed earlier, which sets the ground for what comes next

Translation: You DIDN'T allege fraud, and you didn't do anything but jump up and down yelling "shenanigans! Shenanigans!"

Your job was to plead facts that would support the conclusion that there was a conspiracy. You failed. Therefore, you lose.

Also, you've already argued these claims in state court, and lost. You can't "collaterally attack" those decisions here. What does that mean? It means that separate litigation in Federal Court can't be used by a litigant who lost in state court as a way to appeal that loss.

The Pennsylvania Supreme Court already found that the things you're saying violated Pennsylvania election law didn't actually violate PA election law. You made your arguments and lost. Those claims are done.

Oh, and also, you don't get to relitigate claims you lost on in *federal court*, either. The Trump Campaign *already* argued, pre-election, that residency requirements were unconstitutional. They lost, but didn't appeal. That means they're stuck with that and can't raise it again

And the "notice and cure is unconstitutional" and "poll watchers are constitutionally required" arguments? Cuckoo for Cocoa Puffs. Which you should have known, Rudy, from the fact that you couldn't find any case supporting it. AND you already lost in state court on it.

Note: The 3d Circuit is NOT AMUSED by the argument that any election without poll watching rights that Rudy thinks are necessary is unconstitutional and void.

And they didn't bother appealing dismissal for lack of standing on the Electors/Elections clause claims, so those counts of the second amended complaint are DOA too. So what does that leave? Just the "equal protection claims"

So, here's the thing about Equal Protection claims, and it's kind of esoteric so I'm not surprised Rudy missed this:

You need to allege that you weren't treated equally.

Somehow the clown crew representing the Campaign forgot to do that

"You're treating us equally because you think it'll hurt me"? Not an equal protection claim. Sorry.

Shorter Judge Bibas: "For fuck's sake, Rudy, stop saying the words 'Bush v. Gore' like it's some magic fucking incantation. It isn't"

Counties are allowed to vary in procedure. Full stop.

And we've reached the "what the hell are you clowns smoking" portion of the opinion

And now "also, 'Marks v. Stinson' isn't a magic spell either. I know Marks v. Stinson. Marks v. Stinson is a friend of mine. You, sir, are no Marks v. Stinson"

And the inevitable result: Leave to amend was properly denied. The case is over.

You'd think that would end the opinion, right?

Nope. The horse may be dead, but they're going to continue beating the shit out of it, because it PISSED THEM OFF.

Seriously. The remaining portion of this opinion is a coldly furious rebuke of everything this President and his clown-show complement of attorneys are trying to do to our democracy. At least, that's my read, and I see no other explanation for it

We could stop. But we won't

Mr. President, your lawyers are bumbling morons who don't know how to read the rules and can't get basic procedure right. Thankfully for their malpractice carriers it didn't impact the outcome. But still ... maaaan. Read the damn rules

This wasn't a close question - the Trump campaign loses on every relevant factor. No case on the merits. No irreparable harm. Fairness says "don't give them the injunction". And the public interest is not in their favor. They lose on all 4 factors

No need to screenshot the "no likelihood of success" part - basically, it says "did you read the stuff before this part of our opinion? All of that. All of it."

Irreparable harm: Guys, you lost by 80,000 votes. You're specifically challenging about 10K votes. Learn how to count.

Oh, and by the way, you're in the wrong court, dudes. This isn't as bad as filing in the Court of Claims due to a "Pacer glitch" (google it if you don't already know), but election contests? You do those in PA state courts. As my Bubby would say, gey gezunte heit

Also, giving you guys what you want would be massively unfair to, well, everybody. You're cherry-picking votes and counties, and no, we can't find the election "unconstitutional but only for one of the races". Stop it.

And "public interest"? Guys, you say you want "all legal votes" counted, but you're asking us to throw out legal votes. No. We won't.

Clipped the first sentence of these screenshots separately, because, well, thank you Judge Bibas. It needed to be said.

And with this last procedural coda, this opinion - and the Campaign's last gasp in Pennsylvania - is over.

Yes, if I'm a betting man, I expect the campaign to petition for SCOTUS review.

And I expect it to get denied. They didn't tee anything up for the Supreme Court.

/fin

One last point - I generally try to like or give a "you're welcome" to anyone thanking me for these threads; I appreciate anyone who cared to read it and your thanks do mean a lot to me. Helping people understand the law is (IMO) a professional obligation. So it's nice to know

people think I succeeded.

But I'm about to sign off for Shabbos now. So, in advance: my pleasure.