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Eleventh Circuit Dismisses Sidney Powell and Lin Wood’s Appeal in Georgia Kraken Case: The Answer Is ‘No’

A federal appellate court bookended a roller coaster of a week by rejecting Sidney Powell and Lin Wood’s appeal in the so-called Kraken case that they filed in the state of Georgia.

First Powell and Wood ran to the U.S. District Court over the weekend and asked for a temporary restraining order so they could conduct forensic analyses of Dominion Voting Systems machines in 10 Peach State counties. When they didn’t get the order they really wanted, they went to the Eleventh Circuit with an interlocutory appeal and filed a brief just before midnight on Wednesday, asking the appellate court to decertify the presidential election. On Friday morning, Powell et al. managed to claim that Dominion had actually rigged the election against Joe Biden. By Friday evening, a President Donald Trump-appointed circuit judge penned the opinion of the court flatly denying their appeal on grounds that the court lacked jurisdiction.

“This appeal arises from last-minute litigation that alleges widespread election-related misconduct and seeks sweeping relief,” Judge Andrew Brasher began. “The issue before us, however, is a narrow question of appellate jurisdiction: has the district court entered an order that we have jurisdiction to review? Because the answer to that question is ‘no,’ we must dismiss this appeal for lack of jurisdiction and allow the proceedings to continue in the district court.”

What this means is that the case will go back down to U.S. District Judge Timothy Batten, Sr.’s court. The trial judge previously issued a temporary restraining order said that voting machines should remain untouched in Cobb, Gwinnett, and Cherokee Counties.

“[Defendants are] ENJOINED and RESTRAINED from altering, destroying, or erasing, or allowing the alteration, destruction, or erasure of, any software or data on any Dominion voting machine in Cobb, Gwinnett, and Cherokee Counties,” the judge said.

But Powell and Wood sought much more than that, Circuit Judge Brasher noted.

“True to his word, the district judge issued a written temporary restraining order on Sunday night that gave the plaintiffs what they said they wanted. That order enjoined the defendants from erasing or altering data on voting machines in the three counties listed above. It also ordered the defendants to produce a copy of the contract between the State of Georgia and Dominion Voting Systems,” he wrote. “Two follow-up orders set an expedited evidentiary hearing for the morning of December 4, 2020 on the broader relief requested in the plaintiffs’ motion and certified that the Sunday night order contained the elements required for a permissive appeal under 28 U.S.C. § 1292(b).”

“A few days later, the plaintiffs filed a notice of appeal as to the district court’s Sunday night order. As a result, the district court canceled relief the plaintiffs had requested. The defendants filed a conditional cross-appeal. Later, the plaintiffs also requested permission to appeal in this Court under 28 U.S.C. § 1292(b),” Brasher added.

Powell and Wood asserted that the appellate court had jurisdiction to hear and deliver the goods through an extraordinary appeal. They asked the court to issue a temporary injunctive order to decertify the presidential election, and order Republican Georgia defendants Gov. Brian Kemp and Secretary of State Brad Raffensperger to “preserve all data on the Dominion System” so “Republican Electors can audit the Dominion System” in 10 counties.

It’s was not clear that the Eleventh Circuit has jurisdiction to hear the appeal, so Powell, a freelance former member of the president’s “elite strike force” legal team, filed a response on Friday to jurisdictional questions. Appellants noted that “appellate jurisdiction does not ordinarily exist on an order granting or denying temporary injunctive relief,” but they argued that this was not an ordinary situation. Appellants demanded an opportunity to perform forensic analyses of Dominion voting machines in the name of ” every freedom-loving world citizen”:

Appellants, the people of Georgia and, indeed, the people of the United States, and every freedom-loving world citizen will be irreparably harmed if Appellees are allowed to alter the voting machines to rig elections in this country and make forensic analysis of the voting process impossible. Under Schiavo and Ingram this is all Appellants need show to establish that this Court has jurisdiction over their appeal pursuant to § 1292(a)(1).

According to the Eleventh Circuit, Powell and Wood, rather than taking the district court’s “‘yes’ for an answer,” appealed an unappealable order and have only delayed an opportunity to present the evidence of fraud they claim they have:

The district court has not issued one of those appealable orders. In this case, the district court issued an emergency temporary restraining order at the plaintiffs’ request, worked at a breakneck pace to provide them an opportunity for broader relief, and was ready to enter an appealable order on the merits of their claims immediately after its expedited hearing on December 4, 2020. But the plaintiffs would not take the district court’s “yes” for an answer. They appealed instead. And, because they appealed, the evidentiary hearing has been stayed and the case considerably delayed. For our part, the law requires that we dismiss the appeal and return the case to the district court for further proceedings.

Georgia officials have argued that Powell is a “security risk” who should not get “keys to the software kingdom.”

Kemp and Raffensperger’s filing in Judge Batten’s court on Thursday also said Powell and Wood’s lawsuit is jeopardizing election officials’ preparation for the U.S. Senate runoff elections. If Republicans lose these elections, they lose their Senate majority. Even so, Powell and Wood have publicly encouraged President Trump’s supporters not to vote in the runoff elections because the security of the election can’t be trusted.

Kemp and Raffensperger have asked Judge Batten to “dissolve the November 29, 2020 Temporary Restraining Order entered by the Court” or else the “ability of local county officials to efficiently and securely conduct the upcoming January 5, 2021 Run-Off Elections will be significantly inhibited”:

With this Motion, the State seeks to amend Paragraph Two so that counties may proceed with Logic and Accuracy testing needed to prepare the machines for early, in-person and election-day voting as required by State law.2 Without some modification, non-party Cobb County’s ability to prepare for the January 5, 2021 Run-off Election will be significantly hindered if not practically precluded altogether, while voters in Gwinnett County could be deprived of the same rights to early voting as voters in other Georgia counties. Cobb and Gwinnett voters may also be subject to long lines due to an insufficient number of voting machines. There is no reason for these outcomes and, consequently, the State respectfully requests that this Court dissolve the TRO or otherwise modify Paragraph Two of the Order to permit Cobb and Gwinnett County machines to be used in the rapidly approaching Run-off Election.

Read the opinion below:

[Image via YouTube screengrab]

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Matt Naham is the managing editor of Law&Crime.