A federal judge in Wisconsin quickly ruled against a request by the GOP in yet another one of Sidney Powell’s so-called “Kraken” lawsuits during a status conference on Tuesday afternoon.
U.S. District Judge Pamela Pepper began the hearing by noting she would deny the plaintiff’s request for an evidentiary hearing and spent the overwhelming majority of the rest of the proceedings explaining why this was her chosen and necessary course of action.
The case concerns William Feehan, an elector for President Donald Trump, whose lawsuit requests a court order that would: (1) overturn and decertify Wisconsin’s election results; (2) mandate a statewide manual recount of ballots cast in the presidential election; (3) impound all election equipment—including software and ballots; and (4) declare Trump won the Badger State’s Electoral College votes.
Pepper highlighted the “extreme” nature of Feehan’s request and noted his legal team’s original lawsuit did not actually contain the legal incantatory phrases necessary to support a hearing. Rather, the judge noted, Powell and her crew simply tacked on “just one line” that said they would present arguments for such a hearing later on.
But that was nowhere near the biggest problem for the judge.
The prevailing issue for the court, Pepper said, was whether or not she can even entertain the basic facts of the case. Stressing that she may not even have authority to hear the case at all on the threshold issues, Pepper said there was simply “no point” in hearing any evidence that Powell’s team has to provide.
“There is no point in holding a hearing tomorrow because I have to make a determination as to whether I have the authority to hear this case at all,” the judge noted after pointing out various jurisdictional and justiciability issues raised by the state defendants and various interested amicis who have filed briefs cautioning the Eastern District of Wisconsin against accepting the case.
Throughout the proceedings, however, the judge made it clear which way she was leaning as to those fundamental questions.
“There is no requirement I hold a hearing or a trial on a motion for injunctive relief,” she said at one point—insisting that jurisdiction is the “number one” question in the case and that Powell’s side has, so far, failed to address those concerns. Pepper later outright suggested, while citing precedent, that holding the requested evidentiary hearing would not “be productive.”
Pepper also doubted whether there was any sort of actual “case or controversy” before her and that the request for a “combined evidentiary hearing and trial” was clearly keyed toward losing quickly for the purposes of filing an immediate appeal to the higher courts.
“I understand and I appreciate that,” the judge said while agreeing with attorney Jeffrey Mandell (who pointed out that the lawsuit wasn’t really trying to win on the merits), who appeared on behalf of Wisconsin Gov. Tony Evers (D), one of the named defendants.
Powell herself didn’t appear or handle the arguments on Tuesday–that task was left for attorney Howard Kleinhendler.
During the conference, Kleinhendler also laid bare the actual intent of the effort when quizzed by Judge Pepper as to how the court should proceed on the justiciability/jurisdictional issues on one hand and the issues raised by the request for injunctive relief on the other.
The Kraken’s would-be solution, Kleinhendler said, was for the Wisconsin district court to quickly rule on both issues—the defendant’s motion to dismiss and the plaintiff’s request for relief—at once so they would have an “appealable order” that can immediately be taken to the U.S. Supreme Court.
In service of this hope, Kleinhendler noted the early morning stunt-like lawsuit filed by Texas Attorney General Ken Paxton (R) which was filed against several states Biden clearly won. The Kraken, it seems, wants to join Texas’s lawsuit and piggyback their way to the nation’s high court.
“The relief sought by Texas is identical,” Kleinhendler argued.
Still, Kleinhendler made the case as to why an evidentiary hearing should occur on Wednesday. The attorney argued that hearing the alleged facts would be a welcome “convenience” for the court.
But the court summarily disagreed.
While asking the counselor to “pardon [her] colloquialism,” Pepper said that Kleinhendler’s suggested idea of holding a hearing before a determination that she can even hear the case would be “a bass-ackward way of looking at jurisdiction.”
In the end, the Kraken plaintiffs got a bit of what they wanted. While the judge stuck to her guns on the hearing question, she agreed to an expeditious timeline for reply briefs—giving the parties less than 24 hours to submit their final motions.
The GOP plaintiff was ordered to submit his responses by the end of business on Tuesday while the defendants and amici—should they so desire—must respond to those responses by 4 p.m. EST on Wednesday.
The judge’s decision (she said she would try her “darndest”) would likely imminently follow those final submissions.
[image via screengrab/YouTube]
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