Not long ago, we brought you a story about an unusual lawsuit regarding the 2020 presidential election, the Brunson case, brought by four brothers in Utah who wrote it up themselves without benefit of legal counsel. It presented a fascinating and (at least to us) novel legal argument: that Congress, in failing to investigate claims of election fraud that had been formally brought to their attention by over 100 of their colleagues, failed to do their sworn duty to uphold the Constitution when they went ahead with certification.
The remedy they sought was astonishingly sweeping, including the overturning of Biden’s election and the permanent disqualification for office of every last person who voted for certification. This sounded incredibly unlikely, even wildly far-fetched, but we thought it was interesting that someone was seriously trying this.
When, just like a “real case,” it was put on the docket for the Supreme Court as part of their court conference, one step in the process towards possible consideration for a hearing, we thought it was a good idea to examine the argument these brothers were making and relate what some people were saying about it. But our commentary on this strange lawsuit made it clear at the outset: “PLEASE consider this the longest of long shots.” In other words, it was never our intention to build up false hope.
But some who read our commentary apparently disregarded that and thought we WERE offering hope that these plaintiffs would actually prevail. One such commentary, at BLABBERBUZZ, was titled “Bold Prediction: Mike Huckabee signals that this Supreme Court announcement could mean MAJOR changes.” Whoa, we had “predicted” nothing of the sort, and anyone who did was just being crazy. One trusted friend and a legal expert was understandably concerned and brought this piece to our attention.
Hoping we wouldn’t “shoot the messenger,” he pointed out that ALL petitions filed are listed for a court conference, and there are 200-300 of these every week. He also very helpfully explained (since we’ve never been part of the process and don’t know firsthand about such things) that the fact the court clerk got in touch with the brothers personally to get their materials together was not necessarily significant, as it’s just part of his job to “keep the trains running on time.”
The attorney friend told us the lawsuit has “zero” chance and believes, as do we, that false hope poses the danger of interfering with efforts to expose the very real fraud and interference that took place in the 2020 election and keeping those illegalities from being taken seriously. We certainly had not wanted our discussion of the case to generate false hope and regret it if that happened. In fact, that’s why we’re running his letter in full below, to give you the most accurate picture possible.
We couldn’t agree more that there was, as he said, “a considerable amount of illegality” surrounding the 2020 election, as well as “unprecedented interference with the election by the institutions of our government, as the revelations from the'Twitter files' continue to expose.” If my attorney friend is reading the newsletter, he knows we work to bring these stories into the open every day and want to see them fully investigated. (That’s why we wish the new GOP Congress would get its act together so the House committees can get started.) Rather than “shoot the messenger,” we thank him for the clarification he has offered…
Dear Governor Huckabee,
I just saw this report about your comments on the Brunson case.
I hope the report is inaccurate, as much too much attention has been given to the case.
The fact that the Supreme Court has listed the case for its court conference tomorrow tells us absolutely nothing about whether the court is likely to grant the cert petition. EVERY SINGLE cert petition filed in the court gets listed for a court conference. That’s 200-300 they take up at each weekly conference. Each case gets scheduled by the clerk for the next weekly conference once the cert petition, opposition, and reply briefs are in, or once the respondents have waived an opposition or let the time for filing an opposition expire. EVERY CASE.
Nor does the fact that the clerk invited Brunson to cure a defect with his filing. That, too, provides ZERO indication of any interest by the Court itself in the case. Rather, it is merely the clerk fulfilling his ministerial duties in keeping the trains running on time. Particularly as we get into January, if by chance a case was filed with an easily curable defect, the clerk’s job is to get the defect cured so that it can be considered at the conference for which it would have otherwise been scheduled. Delays at that point, should the court decided to take up a particular case, can result in truncated briefing schedule in order to make it for oral argument in April, the last sitting for the term. But again, the Clerk’s work on that score is not as a result of any interest from the court itself. He just gets it scheduled for the weekly court conference as soon as the case is ready for that.
The way the process works at that point is this: This Chief Justice will circulate a memo adding to a “discuss list” the couple of cases (of the 200-300 or so) he think might warrant further discussion among the Justices. Other Justices can add to the “discuss list” if they think the Chief has overlooked any case of note. The conference then discusses the cases on the discuss list and then votes to either grant cert., deny cert, or carry over to another conference for further discussion and consideration. The remaining cases – the bulk of the 200-300 that were scheduled for that court conference – get no discussion whatsoever, and simply appear on the perfunctory orders list the following Monday as “cert denied.”
I reviewed the Brunson cert petition when I saw folks getting excited about the case. I can tell you that there is ZERO chance of it even making the discuss list, much less getting 4 votes to grant cert. There was a significant amount of illegality in the 2020 election, and that illegality undoubtedly opened the door to enough fraud to have affected the outcome. There was also an unprecedented interference with the election by the institutions of our government, as the revelations from the “Twitter files” continue to expose.
That fraud, that illegality, that “coup” needs to be exposed so that it never happens again, but false hope in quixotic efforts like Brunson will, I fear, make that more difficult as people grow increasingly discouraged when the false hope turns out to be just that.
Thanks for all you do, and please don’t shoot the messenger here.