A campaign attorney for President Donald Trump’s campaign on Wednesday announced that the campaign could be based on performing an intricate – and potentially unprecedented – legal and legislative ploy to undo President-elect Joe Biden’s victory in Pennsylvania and possibly other states do.
This far-fetched strategy would require a federal court to invalidate Pennsylvania’s certification of election results and then get the state general assembly to agree to send Trump voters to the electoral college.
The idea is buried in a footnote in a three-page letter that campaign attorney Marc Scaringi wrote to the US Court of Appeals for the 3rd Circuit.
The Trump campaign calls on the appeals court to hear its offer to block the effects of confirming a victory for Biden in Pennsylvania on Tuesday.
This state has 20 votes in the electoral college. Biden receives these votes, which together with several other states have given him 36 votes more than he would need to win the presidency. The electoral college will vote on December 14th.
Scaringi’s letter states that US courts can decertify the affirmation of the Pennsylvania election, invalidating the findings of the results he wrote and “allegedly issued” Tuesday by Governor Tom Wolf.
Nothing is said about Wolf’s finding of the certified election results, which the governor announced in a tweet that day.
Scaringi’s footnote goes on to say, “In addition, the Pennsylvania General Assembly has the power to appoint the Commonwealth’s presidential elections.”
“A district court decision that President Trump received the legal votes could have a significant impact on the General Assembly,” the lawyer wrote.
Scaringi’s letter explicitly describes the strategy the Trump campaign has been hinting at for weeks since Biden was predicted to win the national elections.
That strategy is to cobble together enough successful legal challenges for Biden’s victory in enough states to reverse that victory, or, if necessary, get enough Republican-controlled legislation to override the voting gains for Biden and Trump voters to be sent to the electoral college.
As part of this strategy, Trump campaign lawyers have repeatedly raised allegations of widespread electoral fraud. However, they have provided no evidence of any such fraud.
And the campaign and its allies have repeatedly lost or withdrawn legal cases that would accomplish that goal through lawsuits.
Last week, following a meeting with Trump in the White House, the GOP leaders of Michigan’s Legislature said explicitly that they would not revoke their state’s certification of the voting results.
Days later, Michigan confirmed that Biden had won that state with 16 votes.
Even so, the Trump campaign has announced that it hopes the US Supreme Court, which has three Trump-appointed judges, will eventually hear his demands.
While on that course earlier this week, Trump approved the General Services Administration’s release of $ 7 million in federal funds to Biden to facilitate his inauguration.
The Pennsylvania appeal came after the Trump campaign suffered a major loss in the state’s U.S. District Court.
Federal Judge Matthew Brann on Saturday rejected the campaign’s efforts to block Pennsylvania’s certification of millions of voters.
In a searing opinion, Brann described the campaign’s allegations as “unfounded” and said Trump’s legal team, led by former New York City Mayor Rudy Giuliani, was failing to produce “compelling legal arguments and factual evidence of rampant corruption” in the state.
In her appeal, the Trump campaign did not call for Brann’s decision to be overturned.
Instead, the campaign asked the 3rd Circuit to allow the campaign to submit an amended version of their legal complaint in order to restore “accidentally restored claims” from a previous version.
Brann’s decision effectively denied the motion to add numerous allegations that the Trump campaign had previously removed from its own lawsuit.
This included claims that Pennsylvania election officials prevented Trump’s supporters from watching the postal ballot count.
“Over 70 million Americans have voted for President Donald J. Trump,” said Scaringi’s letter. “The claims of the campaign should be heard on the merits and not dismissed because of perceived procedural irregularities.”
Scaringi’s letter on Wednesday also called on the 3rd Circuit to allow Giuliani to make oral arguments on the appeal.
Giuliani is currently banned from litigating in that court and “was unable to obtain the required certifications due to Covid-19 complications with government agencies in New York,” wrote Scaringi.
Attorneys for the National Democratic Committee, one of the many parties that have joined the appeal against the Trump campaign, did not immediately respond to CNBC’s request to comment on Scaringi’s letter.
But Biden’s campaign on Tuesday mocked the Trump campaign’s refusal to acknowledge that the president has lost.
“It’s for everyone except Donald Trump, and Rudy Giuliani [campaign senior legal advisor] Jenna Ellis that this election is over and that Joe Biden has won, “said Bob Bauer, senior legal advisor for the Biden campaign.
“Trump did everything to remove the electoral vote and prevent the results from being certified in Pennsylvania, including filing more than 15 unsuccessful lawsuits – most recently with one of the more embarrassing court performances of all time, with the judge on the case Their arguments were ruled ‘without merit’ and ‘not supported by evidence’, “said Bauer.
“Trump did not succeed in Pennsylvania and he will not succeed anywhere else. Trump’s lawsuits will continue to fail, as they have in over 30 cases since Election Day. States will continue to confirm their results, and Joe Biden becomes president sworn in. ” on January 20, 2021. “
Raffi Melkonian, a Houston-based appellate attorney, said on a phone call to CNBC that the argument made in the footnote was “fabricated”.
Melkonian denied that a case cited by Scaringi in that footnote actually suggests that “federal courts can order the result of the decertified election” once a governor has signed it.
But the appellate attorney said the Trump campaign had few other legal options at this point: “I mean everything else is controversial.”
Melkonian said the letter itself was “strange”.
“You shouldn’t sneak into arguments that you didn’t bring up in your letter,” he said.
It is unclear whether the appeal can be argued as Scaringi demands. Melkonian said he did not know whether the district court “would be interested in hearing Rudy Giuliani unable to argue the case”.
“If they do that, they will probably give him an extremely difficult time,” said Melkonian.