June 28, 2021
August 27, 2021
Editorial credit: Manuel Balce Ceneta
For example, in Michigan, Sydney Powell, L. Lin Wood, and several other lawyers filed an action in federal court seeking an order declaring that President Trump had won that state’s election, notwithstanding a vote count showing that Joe Biden was the victor. In Colorado, lawyers filed an action asserting, among other things, that voting machines had deleted nearly 3 million votes cast across the nation in favor of President Trump.
Those lawsuits and others like them were nonsense. But the publicity they generated was part of an outbreak of baseless claims designed to undermine popular belief in the accuracy of the election results showing that Biden had won.
The federal lawsuits had a particularly significant role in undermining trust in our election system. In America, there is, and always has been, widespread faith in the rule of law, the integrity of the process by which the rule of law is implemented, and the role of lawyers participating ethically in an adversary system to ensure that integrity. When lawyers file legal claims containing sensational allegations, the fact that lawyers filed them gives at least some credibility to the purportedly factual allegations they contain.
The filing of those lawsuits and others like them had a role in sowing doubt about the election’s integrity--even after the suits were dismissed. And there can be little question that the doubt they inspired had an impact on events that occurred in the tumultuous months that followed the November election.
Now, though, the reckoning has begun. This week in Michigan, United States District Court Judge Linda V. Parker imposed substantial sanctions on Sydney Powell, L. Lin Wood, and seven other lawyers for their roles in filing a November 25, 2020 lawsuit asking for a declaration that Donald Trump had won the Michigan presidential election. Before imposing her specific sanctions, Judge Parker summarized what that lawsuit was about.
“This lawsuit,” she wrote, “represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving 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. This is what happened here.” And, as she emphasized, "…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."
Lawyers Defending American Democracy applauds Judge Parker’s decision and her 110 pages of detailed, clear, and carefully crafted findings showing that Powell, Wood, and the others who filed the complaint knew that they had no basis for the claims they were making. Indeed, so clearly did they know the baseless nature of their allegations that, as Judge Parker observed, each one of them filed motions in the sanction proceedings to distance themselves, claiming that they had had no responsibility for the allegations they asserted in their complaint.
Earlier in August, United States Magistrate Judge N. Reid Neureiter of Colorado issued a 68-page opinion imposing sanctions on attorneys who filed a complaint that, in the judge’s words, “purported to be a class action suit” on behalf of 160 million Americans claiming, among other things, that voting machines manufactured by Dominion Voting Systems had "deleted 2.7 million Votes nationwide." The action sought $160 billion in damages from Dominion, Facebook, and elected officials in four different states. In his opinion, Judge Neureiter said that the complaint was "one enormous conspiracy theory. . . Albeit disorganized and fantastical, the Complaint's allegations are extraordinarily serious and, if accepted as true by large numbers of people, are the stuff of which violent insurrections are made."
As sanctions, both Judge Parker and Judge Neureiter ordered the lawyers to pay the fees and costs incurred by the defendants in defending their frivolous lawsuits. In addition, Judge Parker took the extraordinary step of ordering the lawyers to take CLE courses on pleading standards and election law. She also transmitted her opinion to the disciplinary authorities in each of the states where the attorneys had been admitted to the bar “for investigation of possible suspension or disbarment,” in addition to recommending bar discipline in Michigan.
In June, the Appellate Division of the New York Supreme Court suspended Rudy Giuliani from the practice of law, pending the final disposition of an ethics complaint against him, for “communicat[ing] demonstrably false and misleading statements to courts, lawmakers, and the public at large in his capacity as lawyer for former President Donald J. Trump.” The unusual interim suspension of Giuliani was warranted, in the Court’s view, because his conduct “immediately threaten[ed] the public interest.”
Those opinions are clear, careful, and thoughtful. They leave no doubt about the baseless nature of the claims in the complaints and the consequences for lawyers who similarly assert falsehoods before the court. These decisions are enormously helpful in holding lawyers to account.
Members of the legal profession may differ vigorously on desired judicial outcomes, but we must all strive to ensure the integrity of the process by which such outcomes are determined. We must shun members of our great profession and others who seek to pollute that process with the kinds of manufactured falsehoods these lawyers invented and repeated.
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