PHILADELPHIA – An election challenge case brought by President Donald Trump has been voluntarily dismissed by his remaining legal counsel, just after one of his attorneys withdrew his representation and claimed he was “used to perpetrate a crime.”
Donald J. Trump for President, Inc. initially filed suit in the Philadelphia County Court of Common Pleas on Oct. 9 versus the Philadelphia County Board of Elections and its commissioners, Lisa M. Deeley, Al Schmidt and Omar Sabir.
In the lead-up to the 2020 Presidential Election, poll watchers for the Trump campaign had been denied closer access to the counting of absentee and mail-in ballots by the trial court in Philadelphia.
On appeal to the Commonwealth Court of Pennsylvania, the Trump campaign’s poll watchers were permitted to get as close as six feet to the counting, in order to observe social distancing guidelines for the COVID-19 pandemic.
When the defendants allegedly did not comply with an appeal to the Supreme Court of Pennsylvania (an appeal the Court later denied), counsel for President Trump then appealed to the federal court in the U.S. District Court for the Eastern District of Pennsylvania, as then-counsel Jerome M. Marcus of Marcus & Auerbach represented the campaign.
During a hearing in the instant federal case on Nov. 5, U.S. District Court for the Eastern District of Pennsylvania Judge Paul S. Diamond asked Marcus about whether Trump campaign representatives were in the room where ballots were being counted.
Marcus responded that there were “a non-zero number of people in the room.”
The Trump campaign and the Philadelphia County Board of Elections reached a compromise on the number of observers present to watch the counting of ballots, and then denied the campaign’s request for an injunction without prejudice as a result.
Soon afterwards, Marcus penned an article for The Federalist, explaining his role in the case and opining potential fraud on the issue of access for the Trump campaign’s vote-counting observers.
However, things have apparently changed.
Marcus filed a motion in the federal case on Jan. 7, withdrawing his representation from the Trump campaign.
“The undersigned respectfully requests leave of this Court to withdraw as counsel for plaintiff in this action pursuant to Pennsylvania Rule of Professional Conduct 1.16(b)(3) and (4) inasmuch as the client has used the lawyer’s services to perpetrate a crime and the client insists upon taking action that the lawyer considers repugnant and with which the lawyer has a fundamental disagreement,” Marcus’s motion stated.
The motion was filed only one day after pro-Trump rioters stormed the U.S. Capitol building in Washington, D.C. during a Congressional session to certify President-elect Joe Biden and Vice President-elect Kamala Harris as the official winners of the election.
The riots resulted in the deaths of five people, including a member of the Capitol Police.
Marcus issued a statement on his withdrawal from the Trump campaign’s case, defending its legitimacy while also confirming that the Capitol building attack was the reason behind his stepping aside.
“Any and all peaceful protests and any well-founded legal challenge against potential election improprieties are not only appropriate but the right thing to do. The case I filed on behalf of the Trump campaign was factually-based, because in Philadelphia, the Trump campaign was not given equal access to observe the counting of absentee ballots,” Marcus said.
“Yesterday, the filing of that and other cases were used by President Trump to incite people to violence…I want absolutely no part of that. Therefore, I have asked the court to allow me to withdraw as counsel.”
The Trump campaign opted to voluntarily dismiss the case entirely one day later, on Jan. 8.
“Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Plaintiff hereby dismisses with prejudice all causes of action and claims for relief in the complaint and emergency motion for relief filed in the above matter,” the dismissal motion read.
“As noted on the docket, the parties reached an agreement on Nov. 5, 2020, resulting in the Court’s denial without prejudice of plaintiff’s motion for emergency injunction. Following that agreement, the issues in this case were litigated by the parties in the Pennsylvania state courts. Defendant has not filed an answer to the complaint or a motion for summary judgment. Therefore, dismissal under Rule 41(a)(1)(A)(i) is appropriate.”
The plaintiff was represented by Ronald L. Hicks Jr. of Porter Wright Morris & Arthur, in Pittsburgh.
The defendant was represented by Christina Matthias and Robert Wiygul of Hangley Aronchick Segal & Pudlin, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05533
Commonwealth Court of Pennsylvania case 983 C.D. 2020
Philadelphia County Court of Common Pleas case 200902035
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com