The Western Journal has published a legal memo written by William J. Olson & Patrick M. McSweeney that they say “outlines a possible legal strategy for the Trump campaign to follow in the coming weeks.” The legal memo was reportedly sent to President Trump prior to it being published in The Western Journal.
The authors of the memo contend that by refusing to hear Texas v. Pennsylvania, the Supreme Court” abdicated its constitutional duty to resolve a real and substantial controversy among states that was properly brought as an original action in that Court,” resulting in intense criticism that they had evaded “the most important inter-state constitutional case brought to it in many decades, if not ever.”
“However,” the authors say, “even in its Order dismissing the case, the Supreme Court identified how another challenge could be brought successfully — by a different plaintiff.”
Just because Texas did not persuade the Justices that what happens in Pennsylvania hurts Texas does not mean that the United States of America could not persuade the justices that when Pennsylvania violates the U.S. Constitution, it harms the nation. Article III, § 2, cl. 2 confers original jurisdiction on the Supreme Court in any case suit brought by the United States against a state. Thus, the United States can and should file suit against Pennsylvania, Georgia, Michigan and Wisconsin. Like the Texas suit, that new suit would seek an order invalidating the appointment of the electors appointed by those four defendant States that refused to abide by the terms of the Presidential Electors Clause.
Olsen and McSweeney say that if this happened, it would “leave it to the state legislatures in those four states to “appoint” electors — which is what the Constitution requires. The United States suffered an injury when those four states “violated the Constitution by allowing electors who had not been appointed in the manner prescribed by the state legislature.”
So, is this the next step for the Trump legal team? Trump legal adviser Jenna Ellis shared this legal strategy memo on Twitter, urging her followers to read it, so this strategy is definitely on their radar.
This still leaves us asking, “Is there hope?”
It’s the season of miracles, so never give up.
Matt Margolis is the author of Airborne: How The Liberal Media Weaponized The Coronavirus Against Donald Trump and the bestselling book The Worst President in History: The Legacy of Barack Obama. You can follow Matt on Twitter @MattMargolis