President Trump’s “provocative” comments could dissuade the Supreme Court from taking on his case, former federal prosecutor Andrew McCarthy told “America’s Newsroom” on Thursday as the Trump campaign has been filing lawsuits over election results in battleground states.
“Turning up the heat politically does not help persuade the judges” and likely “does help the judges who don’t want to take the case,” McCarthy added, noting that the Supreme Court does not have to take all cases and is “in charge of its own docket.”
McCarthy penned an op-ed in the National Review titled, “Trump’s Wee-Hours Rant Was a Legal Blunder, Too.”
“The political part of the election is at an end,” McCarthy wrote in the piece. “The president can do no more at this point to persuade voters.
“If we are headed into a litigation phase, he should leave public statements to his very capable lawyers,” he continued. “This is not a situation where he or the country will be well served by his penchant to wing it in an incendiary way.”
In the op-ed he went on to write that “President Trump did himself no favors with his rash 2:30 a.m. statement that he believes he has won the election and that, if it is denied him, there must have been fraud.”
TRUMP CLAIMS VICTORY WITH MANY STATES STILL UNDECLARED, HINTS AT POSSIBLE SUPREME COURT CASE
He went on to write that “from a legal standpoint, the statement was a blunder.”
Speaking on “America’s Newsroom” on Thursday, McCarthy, who is also a Fox News contributor, expanded on that point.
“The part of the election where you convince the electorate to vote for you is done,” McCarthy said. “All those votes are in a box and they’re being counted and it will come out however it comes out.
“To the extent that he wants to litigate what votes should count and which ones should be inspected and whether there’s been fraud, the audience now isn’t the electorate, it’s the court,” he went on to explain.
“And in particular with the Supreme Court, you’re looking at a tribunal that if we just take a step back, for the last three weeks it has shown again and again that it doesn’t want anywhere near this election. It has really tried to resist getting involved in the Pennsylvania case.
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“So I think for the president to say things that are provocative at this point only strengthens the hand of the contingent on the court that doesn’t want any part of the case,” McCarthy continued.
He then said that “what has to happen now is the court has to get a compelling legal argument that they need to take this case and straighten out what the rules are about which votes should count.”
“That’s a straight, calm, compelling legal argument and turning up the heat politically does not help persuade the judges and actually probably does help the judges who don’t want to take the case,” McCarthy went on to say.
The Trump campaign moved to intervene in Pennsylvania elections, suing to overturn a Supreme Court decision allowing the key battleground state to continue counting mail-in ballots received after Tuesday until Friday, so long as they were postmarked by Nov. 3.
The Supreme Court last month ruled 4-4 to keep a lower court decision in place that allows ballots postmarked by Election Day to be counted for another three days despite a Republican request for a stay on that decision. And last week the high court denied a Republican request to fast-track their appeal to block the extended deadline.
The Trump campaign said it is filing a federal lawsuit in Las Vegas Thursday, suing to stop the counting of what it calls “illegal votes” in Nevada, claiming to have evidence that people who are deceased and nonresidents have cast ballots in the 2020 election.
In Georgia, the Trump 2020 campaign and the Republican Party of Georgia filed a lawsuit in the state Wednesday, alleging that officials in a Democratic-leaning county were counting ballots for the presidential race that were received after polls closed Tuesday.
The Trump campaign also announced it had filed a lawsuit in Michigan to observe ballot counts and promised to demand a recount in Wisconsin, both states Joe Biden flipped, Fox News projected.
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Fox News’ John Roberts, Morgan Phillips, Brie Stimson and Brooke Singman contributed to this report.