A lot will be written about the absurd futility of the Trump “elite strike team” legal strategy, but as it continues to metaphorically run face-first into a wood chipper, one idea keeps creeping around conservative social media that deserves to be highlighted.
What if the Trump team intentionally only showed small evidence to the small courts?
What if the Trump team did this to get to the Supreme Court sooner?
What if the Trump team releases the big evidence to the big courts?
What if Trump is actually playing chess? #DemocRats
— Scott Fishman (@ScottFishman) November 22, 2020
He is not.
Nor are Rudy and Jenna. Sidney Powell is the only one who might be playing chess, but not the kind that ends with Trump in the White House, so much as the kind that ends with her own show on OAN. But in any event, there is no such thing as hiding the “big” or “good” evidence until the appeal.
The trial court makes all the evidentiary findings. If new stuff comes out on appeal, the only thing that’s going to happen is… it goes back to Judge Brann. And that’s before taking into account that the only thing they seem to be appealing is the decision not to allow them to amend the complaint as opposed to, you know, the lack of standing argument.
How can we explain this to people who aren’t lawyers? It’s like replay reviews in the NFL. You know how the replay isn’t really relitigating the call, but only looking for clear and irrefutable video proof? The NFL made that rule because its officials are lawyer types and they make the rules the same way the legal system works. The “evidence” of the play is already there — there are no do-overs on video review — the “appellate” call is just to look at what happened before and say whether it was clearly wrong. The coaches don’t get to tell the ref what they thought they saw or explain why they didn’t agree with the original call. Everything that goes into that decision has to be under the replay hood.
So there is not some magical gambit that allows Rudy to wait until the Third Circuit (or SCOTUS) to unveil his definitive proof that Hugo Chavez is alive and running voting machines from an underground bunker somewhere. At the very best, this is just trying to force Judge Brann to let them write a new complaint… that still would lack standing. To keep the analogy going, Rudy and Friends are arguing that the receiver really did have one foot inbounds when the rule clearly states that he needs both feet.
Or, perhaps more accurately, that the receiver had one foot inbounds when the play was already blown dead for a false start. Because without fixing the standing problem, it doesn’t matter how many Dominion voting machines there were in Philadelphia (spoiler alert: NONE) — this is simply a non-starter.
So the next time you hear from someone in your life about the real evidence that Trump’s people are holding back for the big appellate showdown, go ahead and tell them that it isn’t really a thing.
And please reset the game clock to 34 seconds… it remains 4th down.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.