18th November 2020
Yesterday Rudolph Giuliani appeared in a Pennsylvania court, on behalf of the Trump campaign, seeking to somehow challenge the presidential election result for that state.
According to the superb live-tweeting of that hearing by various American lawyers and journalists, it would appear that day in court did not go well for Giuliani.
The law suit itself has not yet been dismissed – no doubt because any sensible judge will want in such a case to have robust reasoning in their judgment, showing they have both addressed every arguable legal point and weighed each piece of supposed evidence.
(This is in turn because an inevitable (attempt to) appeal is part of the process.)
But what I want to focus on with this post is one painful – indeed excruciating – reported exchange between the judge and Giuliani.
“What standard of review should I apply?”
— Raffi Melkonian (@RMFifthCircuit) November 17, 2020
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.
Giuliani's answer to this line of questions was also to say "normal scrutiny," which is not a thing https://t.co/LCrcs496t5
— Zoe Tillman (@ZoeTillman) November 17, 2020
Judge Brann:
— Adam Klasfeld (@KlasfeldReports) November 17, 2020
What standard of review should I apply in this case and why?
Giuliani says the "normal one."
Are you arguing that strict scrutiny should apply?
Giuliani says normal scrutiny should apply.
(Click into those tweets to see them as part of exemplary threads of legal reportage.)
Here Giuliani was plainly bluffing.
He had no idea what level of scrutiny should be applied, and so he tried to wing it.
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It is a predicament that any lawyer with courtroom experience will recognise.
In England, for example, many lawyers will have their own story about when they are instructed to go to court to apply for the ‘usual order’ only to be asked by the judge as to what order that might be and the hapless lawyer did not know.
It is an experience that should only happen once to a lawyer, if it happens at at all.
This is because the basic requirements of any court room advocacy are to know (a) exactly what order or other remedy you are asking for and (b) the applicable test to be applied by the court in granting that order or other remedy.
If you know nothing else, that is what you should always know before you open your mouth as an advocate.
In this case, Giuliani – an experienced former prosecutor, and (it would seem) the personal lawyer of the President of the United States – did not actually know the applicable test to be applied by the court in considering what he and his client were asking for.
In this particular case – what was the level of scrutiny to be applied by the court?
His inability to answer this is the sort of awkward pratfall that will cause any litigator or advocate to wince.
But what explains this inability?
Especially that, for all his many apparent political faults, Giuliani is an experienced lawyer and not a stupid person.
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In the circumstances, there seems two plausible explanations.
The first is that there seems to be no sincere interest by Giuliani and other Trump lawyers in the litigation process as an end in itself.
The only sense the litigation makes is that it is for a non-litigation goal, to cause delay and disruption and to discredit the electoral process.
If so then filing a suit – any suit – will do and it would not matter much what the applicable law would be.
The second, which is related to the first, is that Giuliani came into the case very late, after a number of previous lawyers quit.
He simply did not have enough time to prepare or to be adequately briefed.
And why did the previous lawyers quit?
That is an interesting question, the answer to which we may never get a because of client confidentiality and attorney-client privilege.
But the most plausible answer – as I set out in this Twitter thread – is that the previous lawyers realised that they could not put forward their client’s case in a way that was consistent with their duties to the court.
https://twitter.com/davidallengreen/status/1328614443941589000
As I also set out in that thread, all the other possible explanations do not seem to add up to what actually happened.
If this is the case, then only a lawyer unwilling or unable to see the problems with making a case for the requested remedy would be able to proceed.
And Giuliani, unburdened by knowing anything about the substance of the case that needed to be argued, would have been such a lawyer.
So, if this is correct, this is why yesterday Giuliani had such a bad day in court.
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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
There are likely to be non-litigation goals additional to those you list. By merely turning up at court and charging the Trump campaign $20k per day to do so, through Giuliani the court itself becomes an arena of grift. Is this new – the use of the justice system itself as a means of layering money from political donors?
Absolutely loved this post. A legal gourmet treat to read.
David, as you say, this is not the usual case.
The lawyers involved, from counsel to Supreme Court judges, are players in a televised, contentious drama. Anyone wanting a quiet life will think carefully before getting involved.
They can say goodbye to rounds of golf or games of bridge – at least, until the case is forgotten, which might be a long time.
So, how does such a case go away, without anyone being seen to have ruled against it?
That is one for the legal brains and wizard – to resolve and make disappear.
This piece raises an interesting point about vexatious litigation. It obvious that Trump is merely seeking to delay a legitimate political process by starting litigation. He has no evidence of voter fraud or malfeasance, nor any credible cause of action. Judging by some of the interchanges between judges and advocates that have been published in the media, and noting the high turnover of Trump’s lawyers, it seems equally clear that they realise Their client’s actions are vexatious.
If my understanding is correct, therefore, it raises the question whether those lawyers who knowingly advocate vexatious actions should be reported to their professional body for breaches of professional conduct and for failing in their duty as officers of the court. I well understand that Trump may not be amenable to the sort of robust advice an English silk might give in this situation. However, by pandering to Trump’s irrational sense of grievance these lawyer are helping to damage the fabric of American society. After all, over 70 million Americans voted for a known sociopath.
There are newspaper reports of very strange interactions between Plaintiffs’ counsel and judges in these cases.
In one, about the number of observers at a count, when questioned counsel said there were “a non-zero number” present. This is mathematically improbable — it includes negative numbers and fractions, and in the ordinary meaning it simply isn’t an answer.
In the Federal Court in Pennsylvania, Mr Giuliani claimed not to know the meaning of the word “opaque”. I don’t know if the word has a specific legal meaning, but the ordinary meaning is straightforward.
The plaintiffs in this case are two republican voters whose votes were rejected in a county which doesn’t allow “curing”: which is to say, giving the voter an opportunity to “cure” a voting mistake such as forgetting to sign a mail-in ballot envelope. Giuliani is arguing under an “equal protection” doctrine that this was unfair to the plaintiffs, and that therefore … wait for it … all votes in counties which do allow curing should be discarded. Needless to say the “pro” curing counties in question went democrat. Yes, this makes no sense whatsoever.
Rudy Giuliani is the real life version of Lionel Hutz from the Simpsons.
I was half expecting him to say he watched Matlock on TV the previous evening.