On Wednesday, a federal judge in Pennsylvania rejected the Trump campaign’s request for an additional evidentiary hearing over its effort to invalidate the vote in the state over a set of technicalities. The rejection didn’t deter the Trump campaign, though, which a few hours later requested to file an amendment to its already amended complaint, asking the judge in the case to throw out the entire election in Pennsylvania and declare Donald Trump the winner, an argument that already failed in state court. The new request was signed by Rudy Giuliani, who just one day earlier had appeared on behalf of a client as a lawyer in court for the first time in nearly three decades.
You may have heard that Giuliani’s appearance before the court on Tuesday did not go well. “I’ve never seen worse lawyering in an election law case in my life,” University of California, Irvine School of Law professor and Slate contributor Richard Hasen tweeted.
Since the election, Trump campaign attorneys have been arguing similarly thin cases in courts all over the country (and judges are trashing them for it). But Giuliani’s appearance on Tuesday was distinctly terrible. He treated the entire affair as though it were a Fox News appearance, raising baseless conspiracy theories unrelated to the case, failing to understand or answer basic questions of law, and contradicting himself on whether or not the campaign was actually alleging any “fraud.”
Giuliani’s appearance might have been amusing, if not for his goal: to invalidate the ballots of hundreds of thousands of mostly Black voters in Pennsylvania as part of a plan to overturn an election the president lost by about 6 million votes and functionally end American democracy. (It’s worth noting that Giuliani was reportedly only placed in charge of Trump’s legal strategy a few days ago, after multiple law firms withdrew from the president’s team.)
On Thursday, the court released the full audio of the hearing, which you can listen to here:
Below are some of the most dumbfounding lowlights of Giuliani’s legal presentation, which now appears doomed to fail.
Giuliani spent most of his time on a claim that was deleted from the lawsuit.
The lawsuit concerns Pennsylvania voters who claim they were disenfranchised because their Republican-leaning counties did not allow for cures of absentee ballot problems while some Democratic counties did. As U.S. District Judge Matthew W. Brann pointed out, these voters should be asking the counties that didn’t accept their votes for relief. Instead, they and the Trump campaign are asking that voters in the Democratic-leaning counties have their ballots thrown out, alleging a violation of the equal protection clause based on an incredibly stretched interpretation of Bush v. Gore. Even if the court went along with this ridiculous argument, it would still only net President Donald Trump a small number of votes, far fewer than he needs to overturn Biden’s current 82,127-vote lead in the state.
Perhaps because of this fact, Giuliani spent only five minutes of his opening on the actual claim in the case. He devoted the remaining 20 minutes to another fixation of his: the claim that majority-Black cities such as Philadelphia and Detroit did not give Republican observers enough access to identify supposedly rampant fraud. As a result, Giuliani argues, hundreds of thousands of votes from those cities should be thrown out willy-nilly. The campaign has made this argument elsewhere, but the claim was physically deleted from the Trump campaign’s own legal filings in this case (you can see the red lines here), and thus had nothing to do with the case at hand.
Before Giuliani’s opening statement, Brann asked for clarity on whether the ballot curing issue was the only claim actually in front of the court. “The only outstanding [item] really before this court at this point is the equal protection claim?” the judge asked. “Yes, Your Honor,” Giuliani replied.
Later in the day, the judge again asked Giuliani: “The poll watching claims were ceded and are now not before this court, so why should I consider them now at oral argument when [the campaign] deleted the claim?” At this point, the judge almost begged Giuliani to acknowledge reality. “Remember what I’m bound to look at,” the judge said. “What I’m bound to look at is the complaint as it’s been amended. Agreed?”
“Well, certainly, Your Honor. It’s been amended,” Giuliani replied, mooting nearly everything he had just argued.
In Giuliani’s Wednesday effort to re-amend the complaint, he argued that the deletion of the argument in the previous amended complaint was an accident. He now seeks to reinsert those claims that were “improperly withdrawn” from the first amended complaint, asserting that the campaign needed the chance “to restore claims which were inadvertently deleted.”
During Giuliani’s argument, the Pennsylvania state Supreme Court ruled unanimously against his poll observer claim.
While he was arguing his unrelated claim, the court that actually was considering the poll observer issue—the Pennsylvania Supreme Court—ruled 5–2 to dismiss Trump’s allegations and ruled unanimously that no votes should be tossed out. News of this caused Giuliani, at one point, to plead with the federal court to take up the matter that he had previously acknowledged was not before it because “we no longer have an opportunity to go to the state courts—the Supreme Court of Pennsylvania has now decided” against us. Ignoring basic legal principles, Giuliani claimed that because the state courts had thrown out the Trump campaign’s arguments, it now had the right to relief in federal court on the spot. “That’s a case that really gives us another claim that just arose today,” he said. “It can only be brought in a federal court! The state courts are virtually closed to us now. We can’t make those arguments there.”
Giuliani alleged fraud, then said that the campaign was not actually alleging fraud.
The defense attorneys and the judges had a tough time even just understanding what Giuliani was alleging, in part because he didn’t appear to know himself. At one point he said 340,000 votes were at issue. At another he said 700,000. At another he said 1.2 million. At another point he said the ballot cure issue could affect “thousands and thousands of people, and since we haven’t had discovery yet, we don’t know how many.” He added: “It could be hundreds of thousands of people.” In Wednesday’s filing, Giuliani seemed to settle on a number, saying “a substantial portion of the 1.5 million mail votes received in the defendant counties were counted in violation of Pennsylvania law.” Basically, the purposes of these lawsuits is not to identify any actual fraud, but to find and eliminate the exact number of votes Donald Trump needs to claim he won the presidency. To wit, a footnote in the Trump campaign’s new amended complaint basically cites a “statistical analysis” to claim that he should be president for life.
During the hearing, Giuliani repeatedly insisted that this case was about rampant voter “fraud.” But the lawsuit itself—like other Trump legal proceedings—never actually alleged fraud, as doing so would require clearing a higher legal standard. While repeatedly saying the case was about “fraud,” Giuliani went back and forth on the critical legal question of whether the campaign was alleging any for the purposes of the court. The judge asked, “It would be correct to say that you’re not alleging fraud in the amended complaint?” Giuliani responded that, actually, “it’s not correct” to say that because the complaint includes a “long explanation of a fraudulent process, a planned fraudulent process.” The judge followed up: “So you are alleging fraud?” Giuliani replied, “Yes, Your Honor.” A few minutes later, when the judge pointed out that the complaint would then have to meet a higher legal threshold, Giuliani chose to immediately “correct myself.”
“So does the amended complaint plead fraud in the particularity?” the judge asked. “No, Your Honor, it doesn’t plead fraud,” Giuliani finally acknowledged. “It pleads … a plan or scheme.”
Got all that?
His argument was full of conspiracy theories and peculiar non sequiturs.
Like many of Trump’s own publicly espoused conspiracy theories, it was hard to follow Giuliani’s assertions without some knowledge of the greater Fox News Cinematic Universe. According to Giuliani, the election itself was “a concerted effort of the crooks that run the Democratic Party,” as he told the judge. He added, “You know that these big-city machines are crooked.” Specifically, every employee of the vote-count operation in most major cities was in on the conspiracy to commit fraud in plain sight, but they had to exclude poll observers, even Democratic poll observers, because “they couldn’t count on the fact that all Democrats are crooked.” He later accused election workers in Democratic-leaning cities of being part of the party’s “little mafia, who would be nice and quiet about it.”
He couldn’t answer why the remedy was to invalidate all the votes.
When confronted directly by Brann with the fact that he was basically asking a single judge to throw out an entire election with no evidence, all Giuliani could do was repeat his claims of widespread fraud. “At bottom, [you are] asking this court to invalidate more than 6.8 million votes,” the judge said, “thereby disenfranchising every single voter in the commonwealth. Can you tell me how this result can possibly be justified?” Giuliani responded that, of the Philadelphia and Pittsburgh votes, “as far as we’re concerned, Your Honor, those ballots could have been from Mickey Mouse.”
He struggled with basic legal terms and even the English language.
When Brann asked him what level of scrutiny he should apply in judging the case—a basic legal term about standards of judicial review—Giuliani appeared to not know what he was talking about, responding “normal scrutiny.”
At one point, opposing counsel openly mocked Giuliani’s comprehension of a key precedent, saying “I don’t think Mr. Giuliani has even read Judge Rogers’ argument or understood it.” Giuliani responded that he had read the opinion and understood it—but he got the judge in question wrong. “My goodness, Judge, I was accused of not reading your opinion, and if I did, not understanding it,” he said. “I have read your opinion and I do understand it. It was completely distinguishable from this case.” The opinion was written by a separate judge.
Finally, Giuliani seemed to struggle with the English language itself. When describing poll observers having been prevented from adequately observing the polls, he stated, “They were denied the opportunity to have observation and ensure opacity.” The judge sought to clarify that opacity means a lack of transparency, rather than transparency.
“I’m not quite sure I know what opacity means,” Giuliani said. “It probably means you can see. These are big words, Your Honor.”
This post has been updated to add audio of the hearing.
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