President Donald Trump’s legal team continued its unprecedented string of legal defeats on Tuesday morning when a federal judge in Georgia refused to order decertification of the state’s election results—just one day before Congress will formally count the Electoral College votes.
Ruling from the bench before issuing a written opinion, U.S. District Judge Mark Cohen of the Northern District of Georgia rejected Trump’s request for an emergency injunction that would have ordered the state legislature or Congress to choose a new slate of electors ahead of Wednesday’s constitutionally mandated congressional count.
“To interfere with the result of an election that has already concluded and has been audited and certified on multiple occasions would be unprecedented and harm the public in countless ways,” Cohen wrote in his ruling later in the day.
“Granting injunctive relief here would breed confusion, undermine the public’s trust in the election, and potentially disenfranchise of millions of Georgia voters,” he added.
Unlike nearly all previous election-related legal proceedings, journalists and the general public were unable to listen to the arguments because the president’s legal team refused consent to remote public access.
Law&Crime, and several other news organizations including the New York Times, Politico, and Bloomberg requested that the court reconsider the denial. However, Judge Cohen’s chambers told Law&Crime that local rules did not permit remote access to proceedings if one of the parties withholds their consent. The hearing remained open to individuals who went to the courthouse in person.
The lawsuit and motion for the injunction—filed against Republican Georgia Gov. Brian Kemp and Republican Secretary of State Brad Raffensperger—rehashed a throng of claims that had already been rebuffed or flatly rejected in state and federal courts across the nation. The lawsuit serves as context for Trump’s extraordinary and, some say, possibly criminal call with the Secretary of State over the weekend.
Attorneys for Raffensperger and Kemp responded to the lawsuit by arguing that Trump was attempting to undermine the democratic process and emphasizing that Georgia’s election was over, asserting that any further remedies would need to be sought elsewhere.
“The election, certification, and casting of ballots are final and over. The matter is now before Congress as set forth in 3 U.S.C. § 15 to count the certified votes. Georgia has completely complied with all requirements under the United States Constitution, federal and state election law,” Georgia’s attorneys wrote in a response filed Monday evening. “Moreover, Plaintiff’s allegation that he has been injured because his election contest has not yet been heard in state court is also not the result of any action by the Defendants. Defendants complied with their statutory obligations to certify the presidential electors in a timely manner. Any delay in the hearing of Plaintiff’s election contest was caused by Plaintiff’s own dilatory actions in pursuing his claim and his improvidently-filed appeal.”
That also troubled Judge Cohen, who quipped that he did not “even know if it’s the eleventh hour or even beyond the eleventh hour,” according to a transcript made available after the hearing.
“It’s not just you’re challenging an agreement that you want in the future not to be enforced; you’re basically using this eleventh hour challenge to a settlement agreement as one of your arguments for this Court to take the absolutely extraordinary action to basically stop — stop the results of an election,” Cohen added.
The Georgia attorney general’s counsel Russell Willard extended the expression.
“Plaintiff threw a Hail Mary illegal pass here at the thirteenth hour,” Willard said later in the proceedings. “The problem with his Hail Mary pass is that the quarterback is alone on the field. The fans have gone home, the marching bands have gone home, even his own team has gone home, and the plaintiff continues to think that he has some viable path forward to victory despite the fact that the popular vote is in, counted, the electoral votes have been cast and all that is left now is for Congress to count the votes.”
With the Senate meeting on Wednesday to certify President-elect Joe Biden’s win, Judge Cohen noted that Trump’s counsel would have them do the senators’ duty.
“Name me any authority that says that a district judge has the right to step in and usurp the authority of the Congress of the United States and decertify the electors that have been certified in — by the State of Georgia in this case,” Cohen told Trump’s counsel Kurt Robert Hilbert. “Because you talk about, you know, people talk about activist judges. I cannot think of a more activist thing for a judge to do than to basically cross the line into another branch of government that has the authority and the sole authority once the state certifies its electors to basically not accept those electors.”
Judge Cohen also gave a verbal thrashing to Hilbert’s co-counsel John Eastman, a law professor who wrote a column questioning Vice President-elect Kamala Harris’s eligibility in what has been denounced as birtherism redux.
“It’s over,” Cohen said, referring to Trump’s request to decertify Georgia’s vote. “The electoral college has met. You think that’s not unprecedented.”
The judge’s written ruling rattled off a series of defects with Trump’s suit, which found that the president lacked standing; the court did not have jurisdiction, and the allegations stood little chance of success. He also said that Trump advocated “hijacking” state proceedings on this issue.
“Plaintiff offers no authority to support a federal court hijacking a pending state election contest case under any circumstances, and certainly not when the failure to expedite was the result of Plaintiff s own actions,” Cohen wrote.
Adam Klasfeld contributed to this report.
Read the order here:
[image via Alex Wong/Getty Images]
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