If President Trump and his campaign’s legal team thought conservative-leaning federal judges would be especially sympathetic to their allegations of election fraud, the record is showing they were mistaken.
Judges appointed by Republican and Democratic presidents alike have struck down the campaign’s allegations of voter fraud in every case on which they have ruled, according to a Yahoo News review of post-election federal complaints, active and closed, that were brought directly by the Trump campaign or by attorneys who are independently seeking to invalidate the results of the election in battleground states.
The review found that none of the nine federal judges who were appointed by Republican presidents or identified as Republicans before their confirmation (including a three-person appellate panel) assigned to seven of the 13 total cases, as of Dec. 3, ruled in favor of the campaign’s election fraud allegations. Lawsuits were filed in Pennsylvania, Michigan, Georgia, Nevada, Wisconsin and Arizona.
Although federal judges are not expected to openly support a partisan agenda, Trump has often boasted about the number of conservative judges he has appointed and implied he expected them to rule in his favor. On substantive legal questions many of them have, but the electoral process, which goes to the heart of American democracy, is a different story. The campaign’s inability to gain traction with conservative judges is telling.
“Despite the narrative that Republicans have been marching in lockstep with President Trump and willing to say anything to further his agenda, there have been federal judges who were appointed by Trump, as well as state and local Republican officials, who, when faced with their duty and the reality in front of them, have done the right thing,” Renato Mariotti, a former federal prosecutor in Chicago and legal analyst, told Yahoo News.
In Pennsylvania, the responses have been particularly scathing. A recent opinion authored by Stephanos Bibas, a Trump-appointed judge in the U.S. Court of Appeals for the Third Circuit and an apparent member of the Federalist Society, a conservative judicial organization, sharply criticized the campaign’s bid to prevent Pennsylvania officials from certifying the election results, which has since occurred in the state.
Bibas, in his opinion rendered Nov. 27, seemed to pinpoint the central flaw of the Trump campaign’s overall crusade, noting that its attorneys are making multiple conclusory allegations, such as the accusation that county boards conspired to exclude Republican poll watchers from the ballot-counting process, but aren’t presenting sufficient facts to back up those claims.
He also pointed out that Rudy Giuliani, Trump’s personal lawyer, said during an oral argument that the campaign isn’t alleging fraud.
“Charges of unfairness are serious,” Bibas said. “But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
Bibas’s opinion was cosigned by two other circuit judges: Chief Judge D. Brooks Smith, who was appointed by President George W. Bush in 2001, and Judge Michael A. Chagares, who was also nominated by Bush, in 2006.
“I think that that decision punctuates what Chief Justice [John] Roberts (of the U.S. Supreme Court) said about there not being Bush judges or Obama judges or Trump judges,” Mariotti told Yahoo News. “The fact that you have scathing opinions from judges like Judge Bibas says more about the strength of the legal cases being brought by the Trump campaign and their allies than it does about those judges, because it’s not hard to see on the face of these filings that they’re deficient.”
Federal judges at all levels have lifetime tenure and can be removed only by impeachment, an extremely rare step generally reserved for instances of outright corruption or malfeasance. The Framers made that rule precisely to insulate the federal judiciary from partisan political pressures.
The circuit ruling was on an appeal of a lawsuit first filed in the Middle District of Pennsylvania on Nov. 9, court records show.
In that court, Judge Matthew Brann, who was appointed by President Barack Obama in 2012 but is a Republican and a member of the Federalist Society, according to his Senate questionnaire, on Nov. 21 dismissed the complaint with prejudice, meaning that the campaign can’t file that complaint again on the same basis.
Brann took the campaign to task for what he described as “strained legal arguments without merit” and called one of its claims “Frankenstein’s Monster” — an argument that has been “haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent,” per the opinion.
After Brann’s decision, the Trump campaign released a statement that oddly seemed to welcome the dismissal.
“Today’s decision turns out to help us in our strategy to get expeditiously to the U.S. Supreme Court,” the campaign said. “Although we fully disagree with this opinion, we’re thankful to the Obama-appointed judge for making this anticipated decision quickly, rather than simply trying to run out the clock. We will be seeking an expedited appeal to the Third Circuit.”
Then, after Bibas’s opinion, campaign attorney Jenna Ellis issued a statement on Twitter from her and Giuliani claiming that the “activist judicial machinery in Pennsylvania continues to cover up the allegations of massive fraud.” Ellis has not responded to emailed questions from Yahoo News.
In Georgia, where attorneys including Trump supporter Lin Wood filed a suit on Nov. 25 alleging a voting-machine conspiracy linked to Venezuela, U.S. Northern District Judge Timothy C. Batten denied a request from attorneys to prohibit the defendants — Gov. Brian Kemp and Secretary of State Brad Raffensperger — from destroying or altering data on any Dominion voting machine in Cobb, Gwinnett and Cherokee counties, according to a transcript from a Nov. 29 hearing shared by Democracy Docket.
Batten was nominated by Bush and confirmed in 2006.
Attorney Sidney Powell, a vehement Trump supporter from whom the campaign has publicly distanced itself, filed a notice on Dec. 1 indicating that she plans to appeal Batten’s decision to the 11th Circuit, court documents show.
Batten and his aforementioned four colleagues are all conservative and/or Republican-appointed federal judges who’ve denied requests from the campaign and its allies to block certification or invalidate election results based on flimsy allegations of fraud. The other four judges, of nine total, presided over cases that were resolved by agreement or were voluntarily withdrawn by the plaintiffs.
The Trump campaign, which has brought most of its roughly three dozen cases at the county or state level, has indicated it wants to bring a case before the U.S. Supreme Court, which has a conservative majority. A tally by Yahoo News of federal cases includes a petition to the Supreme Court to review a state case brought by U.S. Rep. Mike Kelly, R-Pa., that sought to block officials from certifying the state’s election results. The Pennsylvania Supreme Court vacated an order from a lower court that had prohibited state officials from taking any further action regarding the certification of the results.
In a statement issued in support of the petition, Sen. Ted Cruz, R-Texas, called the state’s high court a “partisan Democrat Supreme Court” that has issued “decisions that reflect their political and ideological biases.” Of the court’s seven judges, two are Republicans.
Legal experts say it’s unlikely that the nation’s highest court will accept the case.
“The [plaintiff] wants an order from the U.S. Supreme Court nullifying the effect of the certification of the electors,” Richard Hasen, an election law professor at the University of California, Irvine, wrote in his election law blog. “It is not clear that this kind of remedy is even available. But I do not expect this case to go anywhere at the Supreme Court.”
Mariotti said he can’t imagine that the court would accept the case.
“It’s important to note that [federal] judges are not elected by anyone,” he said. “And the idea that a judge who’s not elected is going to set aside an election, in which millions of people participated, [is] an extraordinary act that would require an extraordinary justification.”
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