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Setting aside politics and opinions on the actual merits of the case, did Rudy Giuliani act as a competent legal advocate in support of his client's position in his November 17 argument in federal court in Pennsylvania?

Were there clear mistakes in his arguments before the judge that a reasonable, competent constitutional-law lawyer would not have made?

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    What metric of "good" are you talking about? Ratio of cases won to lost or tossed from court? Adherence to standards of ethics? Ability to get in each news cycle? – BlueDogRanch Nov 25 '20 at 6:22
  • @BlueDogRanch The ability to win the cases he's litigating (relative to someone else trying the same cases) – bobcat Nov 25 '20 at 6:28
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    And how many cases has he lost due to an inability to recognize facts and the law as written? Nearly anyone else could do better; by not filing in the first place. – BlueDogRanch Nov 25 '20 at 6:31
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    I think this question can be answered without resorting to opinion. I've attempted to do so, and I've also edited the question a bit to focus more on specific facts rather than opinions. – Ryan M Nov 25 '20 at 9:03
  • @RyanM Thanks. Feel free to change the title. I must say I wonder why Trump hired Giuliani for this job, if Giuliani is not quite "with it". – bobcat Nov 25 '20 at 9:05
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No, he was not effective

A good lawyer litigating a constitutional law case would know what the standards of review are for determining constitutionality (strict scrutiny, intermediate scrutiny, or rational basis review) and have an argument for which one applies. Giuliani appeared to be unfamiliar with these standards.

Quoting from an exchange between Giuliani and Judge Brann:

Brann: What standard of review should I apply, and why? What standard of review should I apply in this case —

Giuliani: On a motion to dismiss? I mean I think the normal one, which is that you, you have to deem the factual allegations to be correct, and even if they are correct, you have to find that there’s no merit, no legal merit, no legal theory on which we can get relief.

Brann: Well let me ask you then, are you arguing strict scrutiny should apply here?

Giuliani: No, the normal scrutiny should apply. If we had alleged fraud, yes. But this is not a fraud case.

Brann: …So if that’s the case, why don’t Secretary Boockvar’s and the counties satisfy the standard of review you’re talking about? If it’s not strict scrutiny, and it’s the standard of review you’re implying, why don’t their actions satisfy this?

Giuliani: I’m sorry, I don’t really understand the question, your honor.

Brann: Well this is how I would look at it. I would think that it’s a standard of review of strict scrutiny, potentially. You’re not sure that that’s the case. I’m not imposing my —

Giuliani: Maybe I don’t understand what you mean by “strict” —

Brann: Well, for strict scrutiny to apply, a fundamental right needs to be burdened, as I understand it. So how do the counties or Secretary Boockvar, on behalf of the commonwealth, burden the plaintiffs’ right to vote? How do they burden the right to vote?

The judge is basically giving Giuliani the answer here: he's challenging government action, so strict scrutiny would work in his favor, as it imposes the highest burden on the government to justify its action. The judge is even saying that he thinks strict scrutiny may apply. Despite that, Giuliani appears to have no idea what the judge is referring to, and is simply describing the standard for a motion to dismiss.

The government's lawyers were prepared for this question, as they should have been, and argued for rational-basis review, which favors the government. Had Giuliani argued competently, there could have been two sides to that argument instead of only one.

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  • he also doesn't seem to understand standing either. – Trish Nov 25 '20 at 7:26
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    Yes, generally agree. Giuliani was embarrassingly unprepared for these arguments. He may have been a talented criminal prosecutor, but that kind of work does virtually nothing to prepare you for heavy-duty civil-rights litigation. The courts will let you get away with violating a criminal defendant's right to a fair trial in a million different ways, but it's a whole different ballgame when you're trying to screw with voting rights. – bdb484 Nov 25 '20 at 9:39
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    I think Giuliani entered the case at the last second, when four lawyers had quit and one had tried to quit, without success, so he can be excused for being unprepared. But his fundamental problem was that there were just no facts that supported the case. So a better lawyer, better prepared, would have lost just the same. But what was it his client actually wanted to achieve? – gnasher729 Nov 25 '20 at 12:36
  • @gnasher729 Giuliani had been chomping at the bit for the cases to exist long before then. You can really only excuse him if he was deeply convinced that he was going to have nothing whatsoever to deal with any such cases, and he was just bloviating for attention. Otherwise he would have afforded himself ample opportunities to learn fundamentals that a day on Wikipedia could get you acquainted with (you won't be a ready-to-go litigator, but you at least won't be confused by what "strict" means). – zibadawa timmy Nov 25 '20 at 20:08

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