Trump Wants Giuliani To Take Center Stage At 3rd Circ.

Law360 (November 25, 2020, 9:02 PM EST) -- President Donald Trump's reelection campaign wants the Third Circuit to hear oral arguments on a bid to reverse President-Elect Joe Biden's win in Pennsylvania, and they want Rudy Giuliani to represent them despite his panned performance in the lower court and the fact that he's not certified for the Third Circuit.

In a letter to the chief clerk on Wednesday, attorneys for the campaign asked for 20 minutes of oral argument to be conducted by the former New York mayor, who would otherwise be barred from representing the campaign on appeal by circuit rules requiring attorneys be admitted to the court's bar unless they were working pro bono.

"Plaintiffs request that former Mayor Rudolph W. Giuliani, admitted pro hac vice below, be permitted to argue," the letter said. "Unfortunately, attorney Giuliani, who is admitted to the Second Circuit Court of Appeals, has not been able to obtain the necessary certifications due to Covid-19 complications with government entities in New York."

The campaign said that oral argument would allow it to respond to issues raised in briefs from Pennsylvania, seven counties and numerous intervenors and friends of the court over the alleged delays in filing the various versions of the suit, as well as whether the chance had passed to undo the state's certification for Biden and what the lower court's basis was for denying the campaign another chance to revise their complaint.

The Trump campaign was seeking to file a third version of its lawsuit in the district court that would reinstate claims the campaign's observers weren't able to closely observe ballots being counted in Democratic-leaning counties — claims that had been cut out of the first round of revisions to focus on ones related to whether it was improper for the state to allow counties to choose whether to let voters fix or replace rejected mail-in ballots.

After changing attorneys at the last minute, Giuliani entered an appearance and led arguments on Nov. 17 before U.S. District Judge Matthew Brann, but appeared rusty after years outside the courtroom. He stumbled over questions like what level of scrutiny the court should apply, and had to backtrack from his allegations of a nationwide Democratic conspiracy, eventually admitting that the case he was arguing did not make claims of voter fraud.

Giuliani's performance was criticized by Pennsylvania Attorney General Josh Shapiro as "sad" for the former mayor and federal prosecutor, and even Trump ally and former New Jersey Gov. Chris Christie said the president's legal team had been an "embarrassment" by making claims of voter fraud in public but backing down when required to present evidence or testimony in court.

Judge Brann dismissed the lawsuit on Nov. 21 and denied the campaign's request to submit a new version of the suit. Trump immediately appealed to the Third Circuit but focused on the denial of a new complaint.

In nearly a page of footnotes, the letter to the Third Circuit on Wednesday said that oral argument would allow the campaign to clarify the reasons behind its rapid shuffling of attorneys, which it blamed for the removal of claims it now sought to restore. The campaign claimed its prior attorneys had withdrawn under threats and harassment, though Judge Brann said the one voicemail brought before him was not sanctionable

"Plaintiffs can clarify that there was confusion regarding the filing of the amended complaint, which incorrectly withdrew certain allegations and claims. One day later, plaintiffs informed the court of its intent to correct this by filing a second amended complaint," the letter said. "Plaintiffs then repeated their intent at oral argument the next day, and moved expeditiously to amend the day following, and the District Court never found that they intended to delay or confuse matters."

Another footnote said oral arguments would also give the campaign a chance to address its proposed alternate relief now that Pennsylvania had officially certified its election results on Tuesday — asking the court to order "de-certification" of the vote or to hand the choosing of presidential electors to the GOP-controlled state legislature.

"Federal courts may order the result of the election decertified, which, as plaintiffs can explain, would render the Certificate of Ascertainment allegedly issued by Governor [Tom] Wolf invalid," the letter said. "Moreover, the Pennsylvania General Assembly has the power to appoint the Commonwealth's presidential electors. A decision by the District Court that President Trump won the legal votes may have significant impact on the General Assembly. Further, the District Court can always add parties to this matter, as necessary, to address any attempts by defendants to moot relief related to the election of the President."

An attorney representing four of the seven counties declined to comment on Wednesday. Representatives of the campaign, the state and the remaining counties did not immediately respond to requests for comment.

The Trump campaign is represented by Marc A. Scaringi and Brian Caffrey of Scaringi Law.

The counties are represented by Elizabeth A. Dupuis and Molly E. Meacham of Babst Calland Clements & Zomnir PC, Terence M. Grugan, Timothy D. Katsiff, Edward D. Rogers and Elizabeth V. Wingfield of Ballard Spahr LLP, Ilana H. Eisenstein, Brian H. Benjet, Jayne A. Risk, Brenna D. Kelly, Rachel A.H. Horton, Ben Fabens-Lassen, Danielle T. Morrison, Timothy P. Pfenninger, Sarah E. Kalman and Stephen H. Barrett of DLA Piper and Mark A. Aronchick, Michele D. Hangley and Robert A. Wiygul of Hangley Aronchick Segal Pudlin & Schiller.

Secretary of the Commonwealth Kathy Boockvar is represented by Daniel T. Brier, John B. Dempsey and Donna A. Walsh of Myers Brier & Kelly LLP and Karen M. Romano, Stephen Moniak and Nicole J. Boland of the Pennsylvania Attorney General's Office.

The case is Donald J. Trump for President et al. v. Boockvar et al., case number 20-3371, in the U.S. Court of Appeals for the Third Circuit.

--Editing by Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.

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