Since the excoriating decision by Judge Brann dismissing Trump’s efforts to invalidate the entire Pennsylvania vote, a growing narrative in Trump Twitter world is that the crafty foxes at the Trump legal team are deliberately holding back evidence until they get to Supreme Court. This is generally presented as one of their many “everybody knows” arguments. As in “everybody knows you don’t present your evidence until you get to the Supreme Court.” This argument often includes the suggestion that the diabolically clever Rudy Giuliani is deliberately losing in lower court so he can appeal to the Supreme Court. Stuff like this:
Team Trump helped fuel this narrative by releasing a statement after the Pennsylvania decision claiming the blistering defeat “helps us in our strategy to get expeditiously to the U.S. Supreme Court.”
It is not true that “everybody knows” you hide your evidence until getting to Supreme Court. The truth is the exact opposite.
As a starting point, you don’t have to lose to get to the Supreme Court. You can win and from that stronger position force the other side to appeal.
There is also no guarantee of even getting to the Supreme Court. Roughly 10,000 cases are appealed to the Supreme Court annually. The court takes, on average, about 100. Getting to the Supreme Court is literally a one in a hundred shot. If your strategy is to hide your evidence until you get to the Supreme Court you will likely never present your evidence.
However, the real flaw in this notion that you can sandbag your way to the Supreme Court is that on appellate review the Supreme Court considers only the existing record in the case. The point of appellate review is to determine if the lower court erred based on what it had before it. Discovery does not occur at the Supreme Court. Evidentiary hearings do not occur at the Supreme Court. Witnesses being sworn in and testifying along with cross examination does not occur at the Supreme Court.
The Supreme Court considers questions of law, and does not develop or consider new facts. Trial courts develop facts, conduct discovery and hear witness testimony. Appellate courts review that record to determine if the lower courts ruled correctly based on the legal arguments and facts presented to them. The burden is on the appealing party to preserve the record, for both facts and legal arguments, while at the lower courts so it is in the record should the case get to the Supreme Court.
When seeking certiorari at the Supreme Court Team Trump would have to present the issues as questions of law, not questions of fact. For example, in the Pennsylvania case one of the questions of law they might present could be something like, “Did the District Court err when it found some counties curing votes and other counties not curing votes did not violate the equal protection clause of the Constitution?” Suppose Team Trump presents a writ of certiorari stating the issue as, “Will new evidence appellants will present to the Supreme Court prove widespread fraud in Pennsylvania?” That cert would be flatly denied. The Supreme Court can consider whether a lower court decision was consistent with the evidence presented to that court, but that’s obviously quite different from the Supreme court considering new evidence itself.
Simply put, Team Trump cannot ride into the Supreme Court with a basketful of new evidence, not previously presented to the lower courts, and triumphantly declare “with this stuff we have been hiding we win!” Team Trump can try to convince the Supreme Court that the District Court denied them opportunity to present evidence they were by law entitled to present. However, the remedy for that would be to remand the case back to the District Court with instructions to allow the evidence to be presented and to rule on the merits of it.
For the record, the real venue for Team Trump to present their enigmatic evidence was not even before the District Court. Rather, it was through administrative appeals and challenges set up by Pennsylvania law for parties to an election to challenge results. By not pursuing these venues, and skipping them in favor of the shortcut to Federal court, Team Trump denied themselves the opportunity to present their evidence and make it part of the record. In the statement after the decision, Team Trump claimed Judge Brann’s decision was “censorship.” In truth, they only censured themselves by refusing to follow the process established by state law to challenge election results.