Is It Possible To Take The Election Challenge Straight To The Scotus?

Since publishing Thomas McInerney's Theory last night--which included the suggestion that the Trump legal team would try to take their challenge directly to the SCOTUS, I've been having second thoughts. The SCOTUS is only rarely a court of original jurisdiction--meaning, it normally hears appeals from lower courts (including state supreme courts, as we've seen already in the PA litigation). It seems more realistic then that the Trump team would file in a federal court, get a ruling and, if necessary seek to fast track the case to the SCOTUS.

This morning I was mulling these issues over, but somewhat inchoately. Commenter Andy S. attempted a rather lengthy comment on these issues, one which sharpens the issues, and so I've decided to include his comment as a separate post. 

As you'll see, Andy S. advocates for a RICO case. As readers will be aware, I'm a bit of a RICO skeptic--not generally, but with regard to most of the cases that have been discussed on this blog. In this case, I don't see how a RICO lawsuit would get Trump to the desired goal--timely relief to prevent the election from being decided in favor of Biden. The major stumbling block, that I see, however, is arriving at a definition of the "enterprise" that would be the subject of the case. Whatever my personal views, I find it difficult to believe that any court would be willing to accept that the Democrat Party--as a national entity--is an "enterprise" for purposes of RICO. And the Trump team has said they won't be suing Dominion. I'll leave my comments at that, since the whole business of enterprises is complex. However, before anyone criticizes me on this score, please understand that in my professional career I did successfully argue in cases for the existence of an enterprise in fact--so I'm not opposed to any of this on principle. I'm just sketpical in this case. But read on and see what you think.

Here's Andy S., with some very slight formatting and editing:

Mark, Rudy hasn't spoken to me either, but I agree that the idea of initiating this in SCOTUS is Dead On Arrival. The SCOTUS has original jurisdiction (meaning trial court jurisdiction) only in the following kinds of cases: 

(1) controversies between states; 

(2) actions where ambassadors and other public ministers and consuls of foreign states are parties; 

(3) controversies between the US and a state; or 

(4) actions by a state against citizens of another state. 28 U.S.C. § 1251.

I suppose the US could invoke original jurisdiction by suing a state for a fraudulent election under Article IV of the US Constitution (which guarantees a republican form of government in the states), but I don’t think that’s a good fit. And if you are going to try to get SCOTUS to go out on a limb for this, you need to have a really good fit. I also suppose a state that knows how to run an election (FL, TX) might have a case against the states with compromised elections since the screw ups in the latter affect the rights of the citizens of the former. But, again not necessarily a good fit and the Trump campaign wouldn’t have control over the litigation (although perhaps it could intervene).

At the same time, I’ve been scratching my head about what appear to be half-assed and half-hearted lawsuits brought by the campaign (where the campaign is the party). (The better lawsuits all seem to be brought by private parties.) There are two conclusions I can see: either they are really out of their league or the litigation is more of a public relations campaign (and according to polls, the number of people who have confidence in the election results have dropped markedly since election day) while they get their ducks in a row for the mother of all lawsuits.

The only logical avenue I see for pursuing this is a RICO claim. RICO has three essential elements (there are more, but these three are what typically trip up litigators): 

First, there must be two or more “predicate acts.” These can be wire fraud or mail fraud, so in an election fraud case, that’s probably easy to show. (Morever, if you recall the interview of Lin Wood from a few days ago, he actually came out and asserted people had been killed over this – murder is, of course, a predicate act!) 

Second, the predicate acts must be part of a “pattern of racketeering activity.” There’s a long laundry list of things that can be “racketeering activity” including bribery. For now, I’m going to assume that a good lawyer could find a way to fit what has happened under that definition. 

Third, at least some of the proceeds of the racketeering activity have to have been invested, “directly or indirectly” in an enterprise that affects interstate or foreign commerce. (Dominion? DNC? etc.).

Now, what does a RICO action bring to the table:

1. Immense, extra-judicial,  powers vested in the Attorney General to collect documents in pursuit of his investigation. 18 U.S.C. § 1968. (Frankfurt server?)

2. The AG can institute a proceeding and “pending final determination” the court “may at any time enter such restraining orders or prohibitions, or take such other actions . . . as it shall deem proper.” 18 U.S.C. §1964(b).

3. “Any person injured in his business or property [as a result of RICO crimes] may sue. 28 U.S.C. § 1964(c) (although it appears that this is limited to a suit for damages, it nevertheless makes it pretty easy to defeat any challenges to standing; and 1964(a) would seem to give the court pretty wide-ranging authority to issue injunctions that apply in any RICO action, not just one brought by the AG).

4. It’s pretty easy to bring the action in a district court where any defendant “resides, is found, has an agent, or transacts his affairs” 18 U.S.C. § 1965(a) and the court can bring other defendants residing in other districts into the action.  18 U.S.C. § 1965(b). That makes forum shopping easy.

5. And the final kicker: “In any civil action instituted under this chapter by the United States in any district court of the United States, the Attorney General may file with the clerk of such court a certificate stating that in his opinion the case is of general public importance. A copy of that certificate shall be furnished immediately by such clerk to the chief judge or in his absence to the presiding district judge of the district in which such action is pending. Upon receipt of such copy, such judge shall designate immediately a judge of that district to hear and determine action.” 18 U.S.C. § 1966. This probably allows a friendly chief judge to bypass the court’s normal lottery system for assigning judges to directly choose the judge for the case.

So, pick a friendly district with a conservative chief judge where a single defendant resides. Make sure it is in a circuit where the court of appeals has “flipped” to a conservative majority. Given the widespread use of Dominion around the country and the likelihood that it would be a defendant, that gives a lot of options for forum shopping. File your suit, bring forth the evidence that has already been collected using the RICO investigative authority, and ask for injunctions preventing certification, etc. Ask for an expedited trial. Now the case probably goes off on two tracks. There will be an appeal of any injunctive relief (automatically appealable even without a final order) and the trial proceeds simultaneously.  Extraordinarily doubtful that a trial could  be done by December 14 but probably could be completed (or at least far enough along that everyone knows the extent of the fraud) by Jan. 6 when Congress is due to count the electoral votes. By then, the appellate process has made it to SCOTUS and we get an opinion on the injunctive relief (which will not be dispositive since the court considers “likelihood of success on the merits,” not actual success. But, it will certainly give a strong indicator of how the court views the case. If certification is enjoined, then neither party is likely to have a majority of 270 electoral votes, and the election goes to the House, to be decided by a vote of each state’s delegation.

BTW, who was famous for using RICO to take down the mob in NYC and understands exactly how it works?  Giuliani.

Buckle up! Andy S.