A lawyer for President Donald Trump’s campaign on Wednesday revealed that the campaign could be relying on pulling off a complicated — and possibly unprecedented — legal and legislative trick shot to undo President-elect Joe Biden’s victory in Pennsylvania and possibly in other states.
That far-fetched strategy would require a federal court to invalidate Pennsylvania’s certification of its election results, and then get the state’s General Assembly to agree to send Trump electors to the Electoral College.
The idea is buried in a footnote in a three-page letter that campaign attorney Marc Scaringi wrote to the U.S. Court of Appeals for the 3rd Circuit.
The Trump campaign is asking that appeals court to hear its bid to block the effect of Tuesday’s certification of a win for Biden in Pennsylvania.
That state has 20 votes in the Electoral College. Barring any court or legislative intervention, Biden will get those votes, which, along with several other states, have given him 36 more electoral votes than he would need to win the presidency. The Electoral College is set to vote on Dec. 14.
Scaringi’s letter says U.S. courts can decertify the certification of Pennsylvania’s election, and thus invalidate the ascertainment of those results, which he wrote was “allegedly issued” by Gov. Tom Wolf on Tuesday.
There is nothing alleged about Wolf’s ascertainment of the certified election results, which the governor announced in a tweet that day.
Scaringi’s footnote went on to say, “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,” the lawyer wrote.
Scaringi’s letter explicitly details the strategy that the Trump campaign has hinted around for weeks, ever since Biden was projected as the winner of the national election.
That strategy is to cobble together enough successful legal challenges to Biden’s victory in enough states to undo that victory, or, if necessary, get enough Republican-controlled state legislatures to overrule the popular vote wins for Biden and send Trump electors to the Electoral College.
As part of that strategy, Trump campaign lawyers have repeatedly made allegations of widespread voting fraud. But they have not provided any evidence of such fraud.
And the campaign and its allies have repeatedly lost or withdrawn court cases that would achieve that goal via lawsuits.
Last week, the GOP leaders of Michigan’s legislature, after a meeting at the White House with Trump, pointedly said that they would not overturn their state’s certification of its vote results.
Days later, Michigan certified that Biden had won that state, which has 16 electoral votes.
Despite that, the Trump campaign has said it has hopes that the U.S. Supreme Court, which has three Trump-appointed justices, ultimately will hear its claims.
Even as it pursues that course, Trump earlier this week approved the General Services Administration’s release of $7 million in federal funds to Biden to facilitate his transition into office.
The appeal in Pennsylvania was filed after the Trump campaign suffered a major loss in U.S. District Court in the state.
Federal Judge Matthew Brann on Saturday rejected the campaign’s efforts to block Pennsylvania’s certification of millions of voters.
Brann, in a searing opinion, called the campaign’s claims “without merit,” and said that Trump’s legal team, led by former New York City mayor Rudy Giuliani, failed to present “compelling legal arguments and factual proof of rampant corruption” in the state’s mail-in ballots.
In their appeal, the Trump campaign did not request that Brann’s ruling be reversed.
Instead, the campaign asked the 3rd Circuit to allow the campaign to file an amended version of its legal complaint, to “restore claims which were inadvertently deleted” from a previous version.
Brann’s ruling effectively denied the request to add back in numerous claims that the Trump campaign previously cut from its own lawsuit.
Those included the claim that Pennsylvania elections officials had obstructed Trump’s supporters from observing the counting of mail-in ballots.
“Over 70 million Americans voted for President Donald J. Trump,” Scaringi’s letter said. “The Campaign’s claims should be heard on the merits, and not dismissed for perceived procedural irregularities.”
Scaringi’s letter Wednesday also asked the 3rd Circuit to allow Giuliani to make oral arguments in the appeal.
Giuliani is not currently admitted to argue in that court, and “has not been able to obtain the necessary certifications due to Covid-19 complications with government entities in New York,” Scaringi wrote.
Lawyers for the Democratic National Committee, one of the many parties who have joined the appeal case in opposition to the Trump campaign, did not immediately respond to CNBC’s requests for comment on Scaringi’s letter.
But Biden’s campaign on Tuesday scoffed at the Trump campaign’s refusal to acknowledge that the president lost.
“It’s readily apparent to everyone besides Donald Trump, Rudy Giuliani, and [campaign senior legal advisor] Jenna Ellis that this election is over and that Joe Biden won resoundingly,” said Bob Bauer, the Biden campaign’s senior legal advisor.
“Trump did everything he could to disenfranchise voters and stop the results from being certified in Pennsylvania, including filing over 15 unsuccessful lawsuits — most recently producing one of the more embarrassing courtroom performances of all time, with the judge in the case ruling that their arguments were ‘without merit’ and ‘unsupported by evidence,'” Bauer said.
“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 certify their results, and Joe Biden will be sworn in as President on January 20, 2021.”
Raffi Melkonian, an appellate lawyer based in Houston, told CNBC in a phone call that the argument put forward in the footnote looks “made up.”
Melkonian disputed that a case cited by Scaringi in that footnote actually suggests that “federal courts may order the result of the Election decertified” once a governor has signed off on it.
But the appellate lawyer said the Trump campaign has few other legal avenues to pursue at this point: “I mean, everything else is moot.”
Melkonian said the letter itself is “strange.”
“You’re not supposed to sort of sneak in arguments that you didn’t make in your brief,” he said.
It’s unclear if the appeal will allow arguments, as Scaringi is requesting. Melkonian said he doesn’t know if the circuit court will “have interest in hearing Rudy Giuliani ineptly argue the case.”
“If they do, I assume they’ll give him an extremely hard time,” Melkonian said.