US president Donald Trump's lawyer Rudy Giuliani has described at length to a federal judge in Pennsylvania a vast Democratic conspiracy to steal the US election.
Mr Giuliani said this justified the invalidation of hundreds of thousands of votes – enough to flip the state from president-elect Joe Biden to Mr Trump.
But US district judge Matthew Brann cut straight to the heart of the matter, wondering aloud why it would be reasonable to throw out so many valid ballots – Mr Giuliani at one point said 1.5 million would have to go – based on allegations that some votes were merely counted improperly.
"How can this result possibly be justified?" Judge Brann asked at the end of a six-hour hearing in Williamsport on Tuesday on the state's motion to dismiss the lawsuit.
When Judge Brann pressed Mr Giuliani to explain why none of the specific legal claims in the suit were based on voter fraud, the former New York mayor admitted the campaign wasn’t pleading voter fraud at all. Later, Judge Brann asked whether he should apply a higher legal standard of “strict scrutiny” to the case, which is required when fraud is alleged.
“If we had alleged fraud, then yes, but this is not a fraud case,” Mr Giuliani said quickly.
Even so, Mr Giuliani, picked by Mr Trump to lead his post-election litigation, argued that the "draconian" remedy requested was warranted by the magnitude of fraud carried out by Democratic election officials in US swing states' biggest cities, from Philadelphia to Las Vegas.
“Those ballots could have been from Mickey Mouse. We have no idea. It’s never happened before,” Mr Giuliani said, despite offering no evidence that ineligible voters cast ballots. “This was an egregious violation, a planned violation.”
The case is in many ways emblematic of the Trump campaign’s legal forays since election day – promising more than the court filings show, changing tactics (and in this case lawyers) midstream and rehashing arguments that have failed in other venues, with Mr Giuliani admitting in a Fox Business News interview on Tuesday that he’s searching for a vehicle that will take a case to the US supreme court.
‘Fantasy world’
The claims of massive voter fraud have greater traction in the court of public opinion, where they’ve been fuelling Mr Trump’s refusal to admit defeat, delayed Mr Biden’s transition efforts and triggered protests on the streets of Washington.
Mark Aronchick, lawyer for one of the counties named in the suit, said Mr Giuliani's unfounded claims about a Democratic conspiracy were "disgraceful", especially in a court of law. The attorney said Mr Giuilani's allegations were based on "stacks of unverified affidavits" and urged the judge to throw out a case that "for some reason has become a lifeline to the Trump campaign".
Mr Giuliani, he added, was “living in a fantasy world”.
“Dismiss this case so we can move on to the real business of this country,” Mr Aronchick urged the judge. “Let’s end this.”
Judge Brann ended the hearing without ruling on the state’s dismissal request. He gave both sides the opportunity to file additional arguments in writing. The motion to dismiss may be moot if the judge grants the Trump campaign’s request to file a second amended complaint, which is far from certain. Mr Giuliani said he would incorporate additional claims in the revised complaint.
As the federal case was under way, the Pennsylvania supreme court ruled that Republican poll observers weren’t entitled to stand within a certain distance to observe the counting of ballots, overturning an earlier ruling in favour of Mr Trump that was one of his few court wins.
The campaign and other Republicans have premised their most extravagant claims of voter fraud on the idea that Republican observers were kept too far away to properly monitor ballot-counting.
Amended complaint
The lawsuit narrowed significantly when Mr Trump’s campaign dropped the observer-access claims in a surprise amended complaint on Sunday, alleging only that Democratic-leaning counties improperly allowed voters to fix errors on their mail-in ballots before November 3rd, or in some cases alerted voters to problems so they could vote in person with a provisional ballot.
The campaign claims that’s unconstitutional because some Republican-leaning counties didn’t give voters the same opportunity. The state argues all counties were given the same guidance and county officials are allowed to implement the rules as they see fit.
“What in the world is wrong with alerting mail-in voters that there was a problem with their ballots so they can go to the polls and vote in person? That is a problem? Hardly,” Mr Aronchick said.
That’s the extent of the lawsuit’s claims – a far cry, the state says, from the voter fraud conspiracy theories Mr Giuliani and other Trump allies have been talking about for days.
"There is no claim that any voter cast more than one ballot, that a voter had his ballot wrongfully rejected, that anyone not eligible to vote voted", and no allegation of "voter fraud," Daniel Donovan, the lawyer for Pennsylvania's secretary of state, said at the hearing.
“How the expansion of the right to vote burdens anyone is a mystery,” Judge Brann said.
At the end of the hearing, Judge Brann denied a request from a Trump campaign lawyer to sanction the law firm representing Pennsylvania in the suit after one of its associates left an unauthorised voice mail that she said was threatening. In denying the request from attorney Linda Kerns, Judge Brann said the message from a lawyer with Kirkland and Ellis was "unfortunate" but not threatening, as she claimed.
“I’m very sorry that happened,” the judge said.
The judge also weighed in on the withdrawal from the case of the campaign's law firm, Porter Wright Morris and Arthur LLP, which had been targeted for harassment by the anti-Trump conservative group Lincoln Project on the grounds that campaign lawyers were trying to subvert democracy.
“I think that’s regrettable,” Judge Brann, an Obama appointee, said of Porter Wright’s departure. “You should be able to represent clients without difficulty.” – Bloomberg