Donald Trump's last days in office could be used to grant himself a pardon - an act no other sitting President has ever attempted. Photo / Alex Brandon, AP
OPINION
A federal judge will hear arguments from Donald Trump's campaign today as the President seeks to stop the pivotal swing state Pennsylvania from certifying its election results.
Trump and his supporters have suffered a string of defeats in court since the election a fortnight ago, and most legal experts believe there is no plausible path for the President to overturn Joe Biden's victory.
Insofar as hope does remain for Trump, Pennsylvania and its 20 electoral votes are essential. If he were to flip the state into his column, he would then need to do the same thing in two other states.
Without Pennsylvania, the task becomes exponentially harder. The President would then have to reverse the results in four states – Georgia, Wisconsin, Arizona and Nevada – to get himself past the winning threshold of 270 electoral votes.
The deadline for Pennsylvania to certify its results is next Monday, November 23. Joe Biden currently leads the state by 73,000 votes.
Hence the Trump campaign's lawsuit. Its argument, in a nutshell, is that different counties in Pennsylvania unfairly took different approaches to handling mail-in ballots.
Democratic-leaning counties, such as those encompassing the cities Philadelphia and Pittsburgh, gave voters a chance to "cure" problems with their ballots. For example, if a ballot did not arrive in the proper envelope, the voter was notified.
Meanwhile, the campaign argues, counties in Republican-leaning areas "followed the law" and did not give voters that chance, "disenfranchising" people who were more likely to support Trump.
The lawsuit seeks to stop mail-in ballots that were "improperly permitted to be cured" from being counted in seven counties that voted for Biden.
Lawyers representing Pennsylvania argue Republican-leaning counties could have allowed their voters to fix problems with their ballots and simply chose not to.
Like many of the Trump campaign's post-election lawsuits, this case has not gone smoothly.
The campaign is now on its third team of lawyers. On Thursday, the law firm Porter Wright withdrew from the lawsuit, and last night all three remaining lawyers also asked the court to let them go.
They did not provide a reason for the last-minute request, merely saying their withdrawal would "best serve the plaintiffs".
The filing said a new lawyer, Marc Scaringi, would take over the case, and stressed that he was "aware of the schedule set by the court in this matter and will be prepared to proceed according to that schedule".
On top of being a lawyer, Scaringi is a conservative radio host and former Republican Senate candidate.
Judge Matthew Brann allowed two of the campaign's three previous lawyers to leave the case. Ninety minutes later, at 7.40pm, Scaringi asked him to postpone today's hearing.
"Having only been retained today, plaintiffs' new counsel need additional time to adequately prepare this case for the upcoming oral argument and evidentiary hearing," Scaringi said.
Judge Brann denied that request and told the new legal team he expected it to be prepared for arguments and questioning today, as scheduled.
Things got even more complicated this morning as Trump's personal lawyer, former prosecutor and New York mayor Rudy Giuliani, filed an application to formally appear on the campaign's behalf. It will be his first appearance in federal court since 1992.
Giuliani held a media conference in the car park of a landscaping business the day the election result was called to make baseless claims about widespread fraud.
Trump's legal team is not the only thing that has changed recently. The content of the lawsuit was also scaled down significantly on Sunday night.
Previously, the Trump campaign was attempting to invalidate 680,000 ballots in Philadelphia and Pennsylvania, arguing its election observers had been stopped from properly witnessing the vote count.
That was always a longshot, partly because the evidence contradicted the President's claims on the matter, but also because the campaign was asking a judge to disenfranchise hundreds of thousands of voters based on the mere suspicion that some of their ballots were tainted.
"The problem is that even if some degree of fraud could be proven, the remedy would have to be commensurate with the illegality," prosecutor and conservative legal commentator Andrew McCarthy explained over the weekend.
In other words, no judge is going to chuck out more than 600,000 votes, en masse, unless it can be proven that they're all fraudulent.
Anyway, unlikely as that element of the lawsuit was to go anywhere, it did at least concern enough votes to theoretically wipe out Biden's lead in Pennsylvania.
The new version of the Trump campaign's case, as of Sunday, still includes claims about its election observers being obstructed.
But it is no longer seeking legal recourse for those claims, as the Washington Post has gone through in some detail here.
"References to the observers remain in the lawsuit, but the Trump campaign is not seeking legal relief based on that allegation anymore. Instead, those assertions are more or less filler at this point," the newspaper says.
The campaign has issued a statement disputing that characterisation. Nevertheless, the changes in the court filings are quite clear.
"The processes were hidden during the receipt, review, opening, and tabulation of those 682,479 votes in direct contravention of the Election Code," the lawsuit read before.
"The processes were hidden during the receipt, review, opening, and tabulation of those 682,479 votes," it reads now.
The claim is still there. The argument that election officials violated the Election Code has been stripped out. National Review writer Dan McLaughlin probably did a better job of summing up why that matters, so here are his tweets.
The broader context for all of this is a series of legal challenges from Trump since the election that have, so far, been overwhelmingly denied or withdrawn.
Multiple judges in more than one state have rebuked the campaign's lawyers over the lack of evidence supporting their claims.
Returning to Pennsylvania, for example, Judge Paul Diamond asked the President's lawyers whether they were actually alleging that observers had not been allowed inside vote counting centres. Trump's legal team conceded there had been "a non-zero number" inside.
"I'm sorry then, what's your problem?" the exasperated judge responded.
In Michigan, the campaign tried to argue mail-in ballots which had arrived too late had been predated and then illegally counted.
As proof, it offered the testimony of one Republican observer, who said an unidentified election worker had handed her a post-it note revealing what was happening.
Judge Cynthia Stephens spent some time incredulously grilling Trump's lawyers before dismissing the evidence as "inadmissable hearsay within hearsay".
The pattern of swift defeats for the Trump campaign has convinced most legal experts that the President has no chance of actually overturning the election result.
"With an overwhelming number of losses and withdrawals of cases, there is no path for the Trump campaign to overturn the results in a single state, much less states making up more than 36 electoral college votes," law professor Rick Hasen wrote on his election law blog yesterday.
"It's over. Trump may still say he has won the election. But there is no path. Even the two key federal cases in Pennsylvania do not involve nearly enough votes to overturn the results there even if they were successful [and I don't expect them to be].
"There is no path. Rudy Giuliani can say what he wants and the President can keep declaring that he's won, but there's no plausible legal way this election gets overturned."
Hasen's assessment was backed up by Franita Tolson, another law professor from the University of Southern California.
"Anyone who has been paying attention for at least a week, in which the lawsuits became more plentiful but the evidence less so, would say that the writing has been on the wall," Tolson told Law & Crime.
"It's not surprising that the lawsuits are being withdrawn and the litigation coming to an end before judges lose their patience."
Writing for CNN, former federal prosecutor Elie Honig said the President and his lawyers were "humiliating themselves" with pointless litigation.
"All Trump's attorneys have delivered is a ridiculous mishmash of lawsuits that run the gamut from weak to entirely meritless to downright frivolous.
"There's no delicate way to put this. Thus far, Trump, his campaign and their surrogates have gotten absolutely pummelled in the courts.
"One of the great things about our legal system is that it requires actual proof – not tweets, not public statements, not viral videos – but actual verifiable evidence.
"And the Trump campaign's efforts to, well, trump up evidence of voter fraud have failed spectacularly."
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