Why Withholding Evidence Until They (Giuliani/Trump) Gets To The Supreme Court Is A Stupid Idea

Since the excoriating decision by Judge Brann dismissing Trump’s efforts to invalidate the entire Pennsylvania vote, a growing narrative in Trump Twitter world is that the crafty foxes at the Trump legal team are deliberately holding back evidence until they get to Supreme Court. Why Withholding Evidence Until They (Giuliani/Trump) Gets To The Supreme Court Is A Stupid Idea

This is generally presented as one of their many “everybody knows” arguments.

* Discovery Does Not Occur At The Supreme Court.
* Evidentiary Hearings Do Not Occur At The Supreme Court.
* Witnesses Being Sworn In And Testifying Along With Cross Examination Does Not Occur At The Supreme Court.

As in “everybody knows you don’t present your evidence until you get to the Supreme Court.” This argument often includes the suggestion that the diabolically clever Rudy Giuliani is deliberately losing in lower court so he can appeal to the Supreme Court.

Team Trump helped fuel this narrative by releasing a statement after the Pennsylvania decision claiming the blistering defeat “helps us in our strategy to get expeditiously to the U.S. Supreme Court.”

It is not true that “everybody knows” you hide your evidence until getting to Supreme Court. The truth is the exact opposite.

As a starting point, you don’t have to lose to get to the Supreme Court. You can win and from that stronger position force the other side to appeal.

There is also no guarantee of even getting to the Supreme Court. Roughly 10,000 cases are appealed to the Supreme Court annually. The court takes, on average, about 100. Getting to the Supreme Court is literally a one in a hundred shot. If your strategy is to hide your evidence until you get to the Supreme Court you will likely never present your evidence.

However, the real flaw in this notion that you can sandbag your way to the Supreme Court is that on appellate review the Supreme Court considers only the existing record in the case. The point of appellate review is to determine if the lower court erred based on what it had before it. Discovery does not occur at the Supreme Court.

Evidentiary hearings do not occur at the Supreme Court. Witnesses being sworn in and testifying along with cross examination does not occur at the Supreme Court.

The Supreme Court considers questions of law, and does not develop or consider new facts. Trial courts develop facts, conduct discovery and hear witness testimony. Appellate courts review that record to determine if the lower courts ruled correctly based on the legal arguments and facts presented to them.

The burden is on the appealing party to preserve the record, for both facts and legal arguments, while at the lower courts so it is in the record should the case get to the Supreme Court.

When seeking certiorari at the Supreme Court Team Trump would have to present the issues as questions of law, not questions of fact. For example, in the Pennsylvania case one of the questions of law they might present could be something like, “Did the District Court err when it found some counties curing votes and other counties not curing votes did not violate the equal protection clause of the Constitution?”

Suppose Team Trump presents a writ of certiorari stating the issue as, “Will new evidence appellants will present to the Supreme Court prove widespread fraud in Pennsylvania?” That cert would be flatly denied.

The Supreme Court can consider whether a lower court decision was consistent with the evidence presented to that court, but that’s obviously quite different from the Supreme court considering new evidence itself.

Simply put, Team Trump cannot ride into the Supreme Court with a basketful of new evidence, not previously presented to the lower courts, and triumphantly declare “with this stuff we have been hiding we win!” Team Trump can try to convince the Supreme Court that the District Court denied them opportunity to present evidence they were by law entitled to present.

However, the remedy for that would be to remand the case back to the District Court with instructions to allow the evidence to be presented and to rule on the merits of it.

For the record, the real venue for Team Trump to present their enigmatic evidence was not even before the District Court. Rather, it was through administrative appeals and challenges set up by Pennsylvania law for parties to an election to challenge results.

By not pursuing these venues, and skipping them in favor of the shortcut to Federal court, Team Trump denied themselves the opportunity to present their evidence and make it part of the record. In the statement after the decision, Team Trump claimed Judge Brann’s decision was “censorship.” In truth, they only censured themselves by refusing to follow the process established by state law to challenge election results.

Trump Says It’ll Be Hard For Election Suits To Reach Top Court

President Donald Trump acknowledged that the fight to overturn his re-election defeat “probably” won’t reach the Supreme Court, which had been the goal of his legal team.

“It’s very hard to get a case to the Supreme Court,” Trump said in a Fox News interview conducted by telephone from the presidential retreat at Camp David, Maryland. “I probably can’t get a case.”

On “Sunday Morning Futures” the president rehashed a litany of largely unfounded allegations about the Nov. 3 election without offering new evidence for his claim that millions of votes across several battleground states were fraudulent.

He signaled that his legal options may be running out, but suggested there was no “drop-dead” date for his challenges to finally come to an end.

Trump’s legal team has suffered a series of setbacks in a longshot bid to help him cling to power. The strategy has relied on recounts in several states that so far haven’t helped him, legal cases that have nearly all been dismissed, and appeals to state lawmakers to overrule the popular vote.

“I’ve got the best Supreme Court advocates, lawyers, that want to argue the case if it gets there, but they said it’s very hard to get a case up there,” Trump said.

Trump’s legal team has shrugged off legal failures by saying it’s all part of a march to the Supreme Court. The court has a 6-3 conservative majority and three justices appointed by Trump — the latest, Amy Coney Barrett, was confirmed by the Senate just weeks ago.

But Trump has been pummeled in the lower courts, in part because his campaign’s lawsuits haven’t backed up his out-of-court claims of widespread fraud.

One of Trump’s legal advisers, Jenna Ellis, said as recently as Friday that they were headed to the top court after their latest setback in Pennsylvania.

.@RudyGiuliani and me on Third Circuit’s opinion:

The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud.

We are very thankful to have had the opportunity to present proof and the facts to the PA state legislature.

On To SCOTUS!

— Jenna Ellis (@JennaEllisEsq) November 27, 2020

In Sunday’s lengthy interview, the president largely repeated unfounded allegations of large-scale fraud involving mail-in ballots, voting machines, and other methods, egged on by the show’s host, Maria Bartiromo.

His campaign hasn’t made the most outlandish allegations in court, instead focusing on mundane irregularities such as Republican poll watchers who complained they were prevented from closely observing vote counts, or local election officials who allowed voters to “cure” ballots of small mistakes.

Trump also lashed out Sunday at various political enemies, including Georgia’s top two elections officials, both Republicans — Secretary of State Brad Raffensperger and Governor Brian Kemp. The two men have certified Trump’s defeat in the state. “I’m ashamed that I endorsed him,” Trump said of Kemp.

Trump also endorsed Raffensperger in 2018 as someone who would be “a fantastic secretary of state.” On Thursday, the president called the Republican an “enemy of the people.”

Trump Calls Justice, FBI ‘Missing In Action’ On Election Allegations

Federal officials and state election authorities agree they have seen no evidence of tampering with voting systems.

President Trump accused federal law-enforcement agencies run by his own appointees of ignoring his claims of mass election fraud, as his legal setbacks continued to mount.

“Missing in action,” Mr. Trump said during an interview Sunday on Fox News. “You would think if you’re in the FBI or Department of Justice, this is the biggest thing you could be looking at. Where are they? I’ve not seen anything.”

No evidence of widespread voter fraud has surfaced, and homeland-security officials in early November called the 2020 contest won by former Vice President Joe Biden “the most secure election in U.S. history.”

Federal officials also have agreed with state election authorities that they have seen no evidence that voting systems were tampered with. Multiple federal judges—including some appointed by Mr. Trump—have dismissed Trump campaign complaints, saying they lacked proof backing up allegations of fraud.

The Federal Bureau of Investigation declined to comment Sunday on Mr. Trump’s remarks. The Justice Department didn’t respond to a request for comment.

Sunday’s complaints about the two agencies follow earlier criticism by Mr. Trump against officials at both. The president has expressed frustration in recent months with Attorney General William Barr for not more aggressively probing shortcomings in the FBI’s investigation into members of Mr. Trump’s 2016 presidential campaign and any links to Russia’s election-interference efforts.

Mr. Trump has speculated openly about firing FBI Director Christopher Wray—whom he appointed in June 2017—and has disagreed with him over Russian election interference and allegations of voter fraud. In September, Mr. Wray testified before Congress that Russia was actively trying to influence the 2020 election by denigrating Mr. Biden, drawing Mr. Trump’s ire.

Mr. Trump on Sunday maintained claims of widespread fraud in Mr. Biden’s victory.

“And how the FBI and Department of Justice—I don’t know,” he said. “Maybe they are involved. But how people are allowed to get away from this stuff—with this stuff is unbelievable. This election was rigged.”

The Associated Press has declared the Democratic nominee the winner of the election, with 306 electoral votes to 232 for Mr. Trump. Mr. Biden also won the popular vote with more than 80 million people casting ballots for him versus about 74 million for Mr. Trump. The Electoral College is scheduled to meet to certify the election on Dec. 14.

Mr. Trump’s latest comments came as his legal team continues to lose cases in courts across the country. The Pennsylvania Supreme Court on Saturday dealt another blow to Republican efforts to reverse the election results there, dismissing a lawsuit brought by U.S. Rep. Mike Kelly (R., Pa.) and other plaintiffs. They argued a law passed last year allowing expanded mail-in voting violated the state’s constitution.

“They have failed to allege that even a single mail-in ballot was fraudulently cast or counted,” Justice David Wecht wrote.

The state had already certified that Mr. Biden won Pennsylvania’s 20 electoral votes by about 80,000 votes.

On Friday, the Philadelphia-based Third U.S. Circuit Court of Appeals denied an appeal in a ballot challenge, saying the Trump campaign’s case lacked proof and had no merit. That ruling could be appealed to the U.S. Supreme Court; and the Trump campaign signaled it would, though it hasn’t yet done so.

When asked about that prospect Sunday, Mr. Trump said, “It’s very hard to get a case to the Supreme Court.”

“You need a judge that’s willing to hear a case,” he said of the court losses. “You need a Supreme Court that’s willing to make a real big decision.”

On Sunday, Wisconsin election officials confirmed that Mr. Biden won the state after they concluded a recount in two heavily Democratic counties, Milwaukee and Dane, which includes Madison. Mr. Biden’s lead of roughly 20,000 votes didn’t change significantly, officials said.

A Trump campaign official said Sunday the campaign is reviewing its options for legal challenges for the state’s 10 electoral votes. Wisconsin Republicans have vowed to contest in court the large number of voters who received absentee ballots by claiming they were “indefinitely confined” to their homes because of the virus.

Scott McDonell, Dane County’s clerk, said that the recount process was transparent and fair and that he trusts the courts will find the same. There was no evidence of voter fraud or widespread errors, Mr. McDonell and other officials said.

Wisconsin’s statewide elections commission is scheduled to meet Tuesday, where the bipartisan panel will likely address GOP concerns related to the vote and the recount.

While many Republican Party leaders initially either backed Mr. Trump’s challenges or stayed silent, a growing number have called for the president move on. Last week, the administration formally allowed for the Biden transition to begin.

Gov. Asa Hutchinson (R., Ark.), appearing on “Fox News Sunday,” said he understands Mr. Trump can pursue legal claims but added, “Courts have not seen any evidence of such extensive fraud that they have to change a result.”

“And so that’s why the General Services Administration recognized Vice President Biden as president elect,” Mr. Hutchinson said. “He is president elect. We need to work on that transition.”

Mr. Trump on Thursday told reporters it would be tough to concede and declined to say whether he would attend Mr. Biden’s inauguration.

“I hope the president is there on inaugural day,” Missouri GOP Sen. Roy Blunt said Sunday on CNN, adding that he has talked to Mr. Trump’s staff to see how the president can be involved in the inauguration and in boosting Republican senators in a pair of Georgia runoffs in January. The president is expected to campaign in Georgia on Saturday.

“I think there is a big role for President Trump,” Mr. Blunt said. “And I hope he embraces that and looks at how you move to whatever comes next for him, assuming that this election works out the way it appears it will.”

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