U.S. District Judge Matthew Brann posed a routine question to the lead lawyer for President Trump’s election challenge in Pennsylvania: What type of standard should the court use to evaluate the campaign’s claims of fraud in Nov. 3’s presidential election?
“Normal one,” responded Rudolph W. Giuliani.
Lawyers from coast to coast listening in on Tuesday’s pivotal election fraud hearing in Williamsport, Pa. cringed at the response from “America’s Mayor,” making his first argument in court in years as he tried to back up Mr. Trump’s claims the election was stolen from him.
There are only three types of standards for review: rational basis, intermediate and strict scrutiny. Nowhere in law texts is a “normal” review found.
At that moment, the trajectory of Mr. Trump’s legal assault on the ballot count came into grim relief and reaffirmed widespread skepticism that the lawsuits —or the legal team pursuing them — will succeed.
Indeed, the ascendancy of Mr. Giuliani on the lawsuit team struck the Washington legal community as a harbinger of deep trouble for the president’s election challenges. The 76-year-old Mr. Giuliani, who enjoys a close personal relationship with his fellow New Yorker Mr. Trump, took the lead after top Washington law firms, including Jones Day and Porter Wright Morris & Arthur, either took a pass or bowed out.
Ms. Kerns said she was harassed and threatened by another lawyer for being involved in the case, reflecting possible anti-Trump animus that could undermine the president’s hopes for a fair hearing in court.
Stanley Brand, a former House general counsel and a veteran of high-profile political litigation, said there is a good reason Mr. Giuliani would up the lead lawyer in the case.
“The people who have done this for a living for 30 years or 40 years are not participating in this because they don’t see the validity of the claims and they’re not going to go into court and embarrass themselves,” he told The Washington Times. “The lawyers are looking at this and saying, ‘I can’t go into the court with a straight face and say these things.’”
Mr. Giuliani earned a national reputation as a prosecutor targeting Wall Street tycoons in the 1980s, but has not been a courtroom attorney since first being elected mayor of New York City in 1994. Among the legal lowlights of Tuesday’s session were Mr. Giuliani apparently forgetting which judge he was addressing and admitting later to the court he wasn’t sure of the definition of the word “opacity.”
Mr. Brand said most lawyers don’t want to risk their reputation just to make a buck or for the bragging rights of having the commander in chief as a client. What’s more, they don’t want to risk court sanctions under Rule 11 for making patently unsupportable allegations.
Those concerns haven’t stopped Mr. Giuliani, nor have they stopped the criticism he faces for having taken on the case.
Jason Harrow, chief counsel and executive director of the left-wing group Equal Citizen, called for sanctions soon after the hearing. Like many of Mr. Trump’s critics, he argues the president has yet to produce compelling evidence in any of the states in questions that would overturn Democratic former Vice President Joseph R. Biden’s apparent popular and Electoral College victories Nov. 3.
Mr. Harrow accused Mr. Giuliani of “making false and frivolous arguments in federal court” about widespread election fraud.
“There is real harm in abusing the legal process like this,” Mr. Harrow said. “It wastes taxpayer money and judicial time, and it lets people think there’s really something to these claims, when there’s obviously not.”
Mr. Harrow previously argued unsuccessfully before the Supreme Court defending a 2016 Colorado elector who switched his Electoral College vote in a scheme to stop Mr. Trump from becoming president.
The Trump campaign did not respond to questions about Mr. Giuliani’s lead role in the litigation.
Scrambling for proof
Mr. Giuliani, a former New York mayor who now serves as Mr. Trump’s personal lawyer, is not an expert in election law. Until Tuesday, he hadn’t argued for a client in a courtroom in at least 30 years.
The case Mr. Giuliani argued in Pennsylvania is one of a series of federal court challenges aimed at reversing the results in battleground states.
Prominent Republican election-law specialists, including Benjamin Ginsberg, who argued the landmark Bush v. Gore 2000 election case before the Supreme Court, criticized the Trump lawsuits for lacking evidence and failing demonstrate the extent of any fraud or miscount was enough to change the outcome.
“So far, in the evidence presented by the Trump campaign, there is not close to enough to overturn the results of the election,” Mr. Ginsberg told PBS’s “NewsHour.”
Before Judge Brann, Mr. Giuliani called for more than 600,000 Pennsylvania ballots to be tossed out. He said the ballots were sullied as part of massive, widespread voter fraud across in Democratic-run cities of Philadelphia, Pittsburgh, Milwaukee and Detroit, where Republican poll observers claim they were blocked from viewing the vote count.
At one point, the judge told Ms. Kerns she should be happy he did not approve her motion to withdraw after she answered a pointed question posed by the judge.
Still, Judge Brann expressed skepticism of the president’s claims.
“I don’t think Giuliani performed very well,” said University of Pennsylvania Law School professor Kermit Roosevelt. “In part that’s because he had a very weak position to defend, but he also did not seem fully up to speed on the details of the case, probably because he had just joined.”
He predicted Mr. Trump would lose the case.
Ms. Kerns had filed a motion to withdraw from the case two days before the hearing. The judge did not approve her request.
Before her request, Ms. Kerns received a threatening voicemail from a lawyer working at Kirkland & Ellis LLC, the same firm as Daniel Donovan, who represented Kathy Boockvar, Pennsylvania’s Democratic secretary of state, who is a defendant.
Ms. Kerns had asked for sanctions against the attorney, who she said left the threatening one-minute voicemail on the morning of Nov. 14.
“Since this case was filed, undersigned counsel has been subjected to continuous harassment in the form of abusive e-mails, phone calls, physical and economic threats, and even accusations of treason — all for representing the President of the United States’ campaign in this litigation,” Ms. Kerns wrote in her request for sanctions.
Judge Brann replied the voicemail was “bad form,” but added :it is not a sanctionable matter.”
The judge said the harassment was “regrettable” but not a threat.
“The word I would use would be ‘mockery,’” said Judge Brann.
• Alex Swoyer contributed to this report.
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