As 2021 draws to a close, we at Lawyers Defending American Democracy face the new year with hope, but also trepidation. At this time last year, we assumed that after four years of a president with a proclivity for authoritarianism and resistance to governing norms, the country would eagerly embrace the opportunity for bipartisan governance and new leadership that respects the rule of law.
Instead, fears for our democracy have exacerbated, joined by historians and data points that make clear that the authoritarian roots set down for 4 years are not so easily eliminated. We now know that we cannot take democracy for granted and leave it for someone else to fix.
A heathy democracy requires our constant engagement in civic affairs at every level. It also requires our willingness to teach and learn in an atmosphere of respect and collegiality each day. As we enter 2022, let us all commit to working to protect democracy, acting with civility and respect for others, as well as with a dogged determination that demonstrates the urgency of the moment.
On Thursday, December 9, from 2:00 – 3:30 p.m. (Central Time), LDAD is pleased to invite you to a special virtual program, entitled: Did the Supreme Court Lawsuit to Overturn the 2020 Election Violate Lawyer Ethics? This event will feature distinguished panelists who will analyze a pending ethics complaint against Texas Attorney General Kenneth Paxton. Registration is free and open to the public: Click here to learn more or register >>
The complaint, filed by LDAD and signed by sixteen prominent Texas lawyers –including four former Presidents of the Texas State Bar – contends that the Attorney General’s Supreme Court lawsuit to overturn the presidential election and his urging January 6 marchers to overturn the Electoral College results violated Texas's ethics rules. This program will be a singular opportunity to learn about the lawyer disciplinary system in Texas and its potential application to the Supreme Court lawsuit that was filed by Attorney General Paxton.
This month, our democracy heroes and threats revolve around the American justice and jury system. Our heroes are part of that system that prevailed against racial bias, and who will now seek accountability against a local prosecutor who would have buried a case along with the murder victim. Our threats can be found in members of the bar who tried to use our justice system to perpetuate the Big Lie of election fraud.
Justice Delayed, but not Denied – Heroes of American Democracy
Ahmaud Arbery was out for a daytime jog when a retired police officer, his son, and one of their neighbors tailed him, trapped him between their vehicles, and ultimately murdered him with a shotgun. One of the killers recorded the scene on his cell phone.
Two local District Attorneys, each with personal ties to one of the defendants, recused themselves and declined to bring charges, supporting the defendants’ position that it was a justifiable homicide conducted in the course of a citizen’s arrest.
Only after the cell phone video was released months later to a local TV station did state law enforcement become involved; the three white men from Satilla Shores were promptly charged, and ultimately convicted by a nearly all-White jury, of murdering a young man Black man.
Other aspects of this tragedy deserve mention. Former Brunswick District Attorney Jackie Johnson – who was defeated in her bid for re-election – has been indicted for her alleged role in protecting the defendants. The charges include obstruction and violations of oath by a public officer.
In addition, the Georgia legislature passed a hate crimes enhancement bill, years after a prior bill had been struck down by the Georgia Supreme Court and a subsequent effort was defeated in the Georgia state Senate. In addition, the Georgia legislature repealed the state’s Civil War era’s citizen’s arrest law, which the murderers had sought to invoke in their defense. That law was originally passed to assist in the recapture of slaves, and was used to justify lynching Black people.
Despite significant obstacles, justice prevailed. Yet a 25-year-old avid jogger is dead at the hands of local vigilantes. Without the camera video and the community outrage, his killers would likely not have been prosecuted. LDAD applauds the skill and diligence of the ultimate prosecutors (including lead prosecutor Linda Dunikoski), investigators, police officers, jurors and the presiding judge who brought the case to a just culmination.
Sanctions for Lawyers Using the Courts to Sell the False Narrative of Election Fraud – Democracy Threats
Colorado Judge N. Reid Neureiter ordered lawyers Gary D. Fielder and Ernest J. Walker to pay over $180,000 in attorneys’ fees for their “fantastical, unsupported and disorganized” claims in a class action suit seeking $160 billion in damages to the nation’s voters, due to Donald Trump’s election defeat.
Their lawsuit claimed that state leaders in Wisconsin, Pennsylvania, and Georgia had conspired with spouses Mark Zuckerberg and Priscilla Chan, and Dominion Voting Systems, to steal the Presidency from Donald Trump in 2020. The complaint, which the judge described as litigation by cut-and-paste, rehashed false allegations from other cases around the country that had already been dismissed.
Judge Neureiter found that the attorneys had not investigated or verified the facts which they were alleging, nor spoken to other attorneys whose previously filed cases containing these false allegations had already been heard and dismissed. The judge pointed out that the lawyers had a heightened duty to conduct such an inquiry because of the volatile political atmosphere. Instead, the judge noted that the suit restated: “unverified and uninvestigated defamatory rumors that strike at the heart of our democratic system and were used by others to foment a violent insurrection that threatened our system of government.”
As Judge Neureiter further observed, the lawsuit’s purpose was to manipulate gullible members of the public and helped promote the January 6 insurrection at the Capitol. The two attorneys had collected $95,000 in public donations to support their lawsuit.
The judge indicated that his ruling should be viewed as a warning to other lawyers who think they can file false allegations that could have such an impact on the rule of law:
I conclude that the repetition of defamatory and potentially dangerous unverified allegations is the kind of ‘advocacy’ that needs to be chilled. Counsel should think long and hard, and do significant pre-filing research and verification, before ever filing a lawsuit like this again.
Just a few days ago, a nearly identical amount was awarded against nine lawyers, including Sidney Powell and L. Lin Wood, by Michigan Judge Linda Parker for their lawsuit seeking to overturn the Michigan election result. In a rebuke that was similar to the Colorado order issued by Judge Neureiter, Judge Parker stated that the lawsuit was an historic and profound abuse of the judicial process, and that the lawyers attempted to deceive a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated.
Our court system should never be used to spread untruths and lawyers must always be held accountable for filing claims that are false or based on information that is not supported by facts.