'Cover up': Trump lawyers react after third circuit rejects PA lawsuit

Appeals court rejects Trump challenge of Pennsylvania race
MARYCLAIRE DALE, Fri, November 27, 2020, 6:41 PM

President Donald Trump's legal team suffered yet another defeat in court Friday as a federal appeals court in Philadelphia roundly rejected the campaign's latest effort to challenge the state's election results.

Trump's lawyers vowed to appeal to the Supreme Court despite the judges' assessment that the "campaign's claims have no merit."

"Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here," 3rd Circuit Judge Stephanos Bibas, a Trump appointee, wrote for the three-judge panel, all appointed by Republican presidents.

The case had been argued last week in a lower court by Trump lawyer Rudy Giuliani, who insisted during five hours of oral arguments that the 2020 presidential election had been marred by widespread fraud in Pennsylvania. However, Giuliani failed to offer any tangible proof of that in court.

U.S. District Judge Matthew Brann, another Republican, had said the campaign's error-filled complaint, "like Frankenstein's Monster, has been haphazardly stitched together" and denied Giuliani the right to amend it for a second time.

The 3rd U.S. Circuit Court of Appeals called any revisions "futile." Chief Judge D. Brooks Smith and Judge Michael Chagares were on the panel with Bibas, a former University of Pennsylvania law professor. Trump's sister, Judge Maryanne Trump Barry, sat on the court for 20 years, retiring in 2019.

"Voters, not lawyers, choose the president. Ballots, not briefs, decide elections," Bibas said in the opinion, which also denied the campaign's request to stop the state from certifying its results, a demand he called "breathtaking."

In fact, Pennsylvania officials had announced Tuesday that they had certified their vote count for President-elect Joe Biden, who defeated Trump by more than 80,000 votes in the state. Nationally, Biden and running mate Kamala Harris garnered nearly 80 million votes, a record in U.S. presidential elections.

Trump has said he hopes the Supreme Court will intervene in the race as it did in 2000, when its decision to stop the recount in Florida gave the election to Republican George W. Bush. On Nov. 5, as the vote count continued, Trump posted a tweet saying the "U.S. Supreme Court should decide!"

Ever since, Trump and his surrogates have attacked the election as flawed and filed a flurry of lawsuits to try to block the results in six battleground states. But they've found little sympathy from judges, nearly all of whom dismissed their complaints about the security of mail-in ballots, which millions of people used to vote from home during the COVID-19 pandemic.

Trump perhaps hopes a Supreme Court he helped steer toward a conservative 6-3 majority would be more open to his pleas, especially since the high court upheld Pennsylvania's decision to accept mail-in ballots through Nov. 6 by only a 4-4 vote last month. Since then, Trump nominee Amy Coney Barrett has joined the court.

"The activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud," Trump lawyer Jenna Ellis tweeted after Friday's ruling. "On to SCOTUS!"

In the case at hand, the Trump campaign asked to disenfranchise the state's 6.8 million voters or at least "cherry-pick" the 1.5 million who voted by mail in Philadelphia, Pittsburgh and other Democratic-leaning areas, the appeals court said.

"One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption," Brann, a member of the conservative Federalist Society, wrote in his scathing ruling on Nov. 21. "That has not happened."

A separate Republican challenge that reached the Pennsylvania Supreme Court this week seeks to stop the state from further certifying any races on the ballot. Democratic Gov. Tom Wolf's administration is fighting that effort, saying it would prevent the state's legislature and congressional delegation from being seated in the coming weeks.

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Legislature to Seek to Reclaim Power to Appoint Electors: Pennsylvania State Sen. Mastriano Electors: Pennsylvania State Sen. Mastriano
Kristinn Taylor; November 27, 2020 at 11:56am

Pennsylvania state Senator Doug Mastriano (R-33) said Friday the Republican controlled legislature will seek to reclaim its power to appoint the state's electors to the Electoral College. Mastriano made his comments in an interview with former Trump administration official Steve Bannon on the War Room podcast, stating the move could take place as early as today.

Mastriano, a retired U.S. Army Colonel, said he has been working with Pennsylvania House and Senate members on a joint resolution to "grab back" their constitutional authority from the secretary of state that was ceded in 1938.

Mastriano said momentum for the resolution stemmed from the explosive hearing on Wednesday by Senate Republicans in Gettysburg that featured evidence indicating massive fraud that tipped the election for Democrat nominee Joe Biden over President Trump.

Trump attorneys Rudy Giuliani and Jenna Ellis appeared in person at the hearing. Trump addressed the hearing for about ten minutes via Ellis' cellphone. Several witnesses presented allegations and evidence of fraud.

Mastriano told Bannon he believes two of the four GOP leaders of the House and Senate already support the move to reclaim the power to appoint electors, as do over half of GOP legislators.

Video of War Room podcast cued to Mastriano:

Transcript excerpts:

Mastriano: ...So, we're gonna do a resolution between the House and Senate, hopefully today. I've spent two hours online trying to coordinate this with my colleagues. And there's a lot of good people working this here. Saying, that the resolution saying we're going to take our power back. We're gonna seat the electors. Now obviously we're gonna need the support of the leadership of the House and Senate, we're getting there on that. But we need to act like...

Bannon: Hold it, hold it, hold it. I think we got some breaking news here. You're saying you're going to get a joint resolution to actually go forward and, the Republicans control the House and Senate, to go forward to basically take the power back from the secretary of state and put it in the state legislature to put forward the electors?

Mastriano: That is exactly what we're gonna do. And so, look, it's gonna obviously be a struggle. We're gonna hear the palpitations and you know the outcries of our Governor Wolf and Secretary Boockvar, whose resignation should have happened months ago and she shouldn't have ever been confirmed. But you know what we have that power and we're gonna take that power back because there's so much evidence of shenanigans and fraud, we can't stand aside and just watch this unfold around us. You know, it's not about disenfranchising anybody, it's making sure that every legal vote counted. And if there's extensive shenanigans out there it's up to the General Assembly to step in. So we have a fight on our hands and we're gonna fight. We're gonna take the fight all the way to the Supreme Court if we have to.

Mastriano: ...But, yes, I am seeing a shift. Now there, there's several, there's four leaders, two in the House, two in the Senate and I'm seeing a shift among a couple of 'em. So, I think the momentum's on our side. Look, if, there's fifty voices in the Senate, twenty-nine Republican or independent caucus with us, all we need are, you know, sixteen in the Senate to really influence the leadership and I think we're pretty darn close to having, you know, sixteen, seventeen senators and I think there's at least half of the House as well on the Republican side moving forward, so yes they are getting motivated. And sometimes it feels like we're pushing from behind, but, you know, doing the right thing eventually catches on.