Did lawyers in election suit abuse the judicial process?

The claim by former President Donald Trump and his acolytes that the 2020 election was stolen is one of the biggest lies in modern American politics. Although lying about the election "may" enjoy First Amendment protection in some contexts, there are recognized limits to this protection, including laws prohibiting incitement to riot, fraud and defamation.

Lawyers "may" have the right to say the election was stolen during public debate and discourse, but those who pursue litigation claiming election fraud on behalf of their clients are subject to statutory requirements, the rules of civil procedure, and the rules of professional conduct. They lose their First Amendment rights upon "entering" the courtroom.

On Aug. 25, U.S. District Judge Linda Parker imposed sanctions on nine pro-Trump attorneys, called the merry band of "Kraken" lawyers," for "a historic and profound abuse of the judicial process" while representing their Michigan Republican clients. King, et al. v. Whitmer et al., 20-13134 (E.D. Mich.). Parker concluded: "And this case was never about fraud -- it was about undermining the People's faith in our democracy and debasing the judicial process to do so." The opinion is certain to find its way into professional responsibility and ethic training programs.

As a general matter, lawyers have an obligation to the judiciary, the legal profession, and the public of due diligence in presenting allegations of fraud as truthful, to advancing only tenable legal claims, and to proceeding in good faith and with a proper purpose. They also have the duty to dismiss a lawsuit when the requested relief is clearly unavailable.

Parker found sanctions were appropriate against the "Kraken" attorneys. She specifically found they were liable for excessive costs (28 U.S.C. Section 1927) by failing to dismiss the case after acknowledging the case was moot, which unreasonably and vexatiously multiplied the proceedings.

The nine also violated Federal Rule of Civil Procedure 11, which imposes an affirmative duty to investigate the facts and law before filing a complaint. At the inception of their lawsuit about the election being stolen, plaintiffs' claims were barred by mootness, laches, standing, and the Eleventh Amendment immunity. The lawyers also failed to provide nonfrivolous arguments to address these doctrines.

The allegations that defendants violated the Michigan Election Code, even if the allegations were true, did not violate the code. Plaintiffs also failed to inquire whether acts or events were in fact unlawful.

The pleadings lacked evidentiary support in violation of Rule 11(b)(3). They were riddled with baseless speculation and conjecture that was contradicted by existing public evidence. The argument that they were acting with a "pure-heart," but presumably "empty head," did not convince the court that "patently unsupported factual assertions" should be allowed without consequences. Sanctions under Rule 11(b)(3) does not depend upon good or bad faith. Moreover, the court found that in each of the matters it considered, the nine acted in bad faith and with an improper political purpose.

Parker also found that she had the inherent authority to award attorney fees because the claims advanced were meritless, counsel knew or should have known this, and, that the motive for filing the suit was for an improper purpose.

The court ordered plaintiffs' attorneys pay fees and costs to the state and city of Detroit, the nine attorneys were directed to complete continuing legal education on pleading standards and election law, and that a copy of the court's decision be sent to the Michigan Attorney Grievance Commission and to the disciplinary committees where each of the nine is admitted for possible disbarment.

The lesson couldn't be clearer: The federal judiciary is not a political forum for lawyers to advance one's political agenda. The election was not stolen. The courts are for resolving genuine cases and controversies that are well grounded in fact and law.

The court properly expressed the concern that its sanctions would not deter future baseless lawsuits. It was troubled by the fact that attorney Sidney Powell "is profiting from filing this and other frivolous election-challenge lawsuits" by running a website soliciting donations to support "additional cases [being prepared] every day." The other lawyers may be soliciting donations as well. This grift should be considered by the state bar disciplinary committees in considering whether the attorneys should be allowed to continue practicing law.