2021-07-18 15:28:52 UTC
Trump, lock him up:
Courts crack down on the 'Kraken' lawyers
Kimberly Wehle, opinion contributor 4 hrs ago.
Things are heating up in a Michigan federal court around the Big Lie,
with lawyers Sidney Powell and Lin Wood facing sanctions for bringing a
series of election fraud lawsuits that had no apparent basis in law or
This is an extremely important development for the rule of law and the
integrity of the judicial system, as it comes on the heels of a New York
state appeals court's decision suspending Rudy Giuliani from practicing
law in that state for similarly lying to the courts. Recall that Team
Trump brought 65 post-election lawsuits around the Big Lie, roundly
losing 64 for lack of evidence and other legal flaws - including through
the pens of Trump-appointed judges.
Here's the problem for lawyers willing to lie in court: Courts, unlike
politicians, are bound by rules of evidence and procedure. They have no
choice but to follow the facts and the law. Otherwise, their decisions
will be reversed by an appeals court. When it comes to the 2020 election
litigation, some judges are finally stepping up to punish lawyers - who
are otherwise constrained by ethical rules as a precondition to
maintaining a law license - for abusing the courts in order to spread
public disinformation for political gain.
Powell and other lawyers brought four lawsuits in battleground states
that included Michigan, Arizona, Wisconsin and Georgia. All four were
expeditiously rejected all the way to the U.S Supreme Court. A federal
court in Arizona called Powell's case "sorely wanting of relevant or
reliable evidence," a Wisconsin judge called her pleas for relief the
stuff of a "mythical time machine," and U.S. District Judge Linda Parker
dismissed Powell's Michigan case for relying on "nothing but speculation
and conjecture." Powell also faces defamation lawsuits by Dominion
Voting Systems and another manufacturer for touting the falsehood that
the companies' machines fraudulently helped President Biden win the 2020
election. Filed in federal court in Washington, D.C., the Dominion
lawsuit alleges that "Dominion's founder, Dominion's employees,
Georgia's governor, and Georgia's secretary of state have been harassed
and have received death threats" as a result.
On Monday, Judge Parker held a six-hour hearing on whether Powell, Wood
and the other lawyers who proffered such nonsense in court should be
sanctioned. "I don't think I've ever seen an affidavit that makes so
many leaps," she noted about one particularly galling piece of evidence.
"This is really fantastical. So my question to counsel here is: How
could any of you as officers of the court present this affidavit?"
Shockingly, counsel for the lawyers reportedly questioned Parker's
objectivity during the hearing, to which the judge shot back, "I would
caution you to not question my procedure. You're here to answer my
As I explained last year, lawyers practicing in federal court are bound
by Rule 11 of the Federal Rules of Civil Procedure, which requires
attorneys to certify upon signing any document filed in court - or
making any oral argument based on such a document - that it is "not
being presented for any improper purpose," that its claims "are
warranted by existing law" and that "the factual contentions have
evidentiary support." Lawyers (and their clients) can be slapped with
monetary fines or other sanctions for violations, including an order
directing them to pay the other sides' attorneys' fees and costs. Rule
11 and state court equivalents are further bolstered by the American Bar
Association Model Rules of Professional Conduct and other ethical
In 1991, the U.S. Supreme Court decided in Chambers v. Nasco to impose
sanctions totaling nearly $1 million, noting that such a penalty may be
"necessary to the integrity of the courts" because "tampering with the
administration of justice ... involves far more than an injury to a
single litigant. It is a wrong against the institutions set up to
protect and safeguard the public." This is precisely why the likes of
Giuliani, Powell and Wood are in such hot water. Courts know that the
corrosive effect of these lawyers' shenanigans could be longstanding and
incalculable. Without swift accountability, unethical attorney behavior
sets a precedent that weakens the U.S. legal system writ large.
Wood and attorney Emily Newman tried to distance themselves from Powell,
asserting that their respective roles were minimal. Wood claimed to not
even know that his name was added to the Michigan lawsuit, suggesting he
merely told Powell "if she needed my help, I would help her from a trial
lawyer standpoint." Powell retorted that she "did specifically ask Mr.
Wood for his permission" to add his name, and counsel for the city of
Detroit, David Fink, called Wood's claim "blatantly false" given his
concurrent statements on social media. Parker has given the parties two
weeks to file additional papers, with lawyers for the Powell side asking
for more hearings with witnesses.
For someone like me who has taught civil procedure to law students for
more than 15 years, this tale is the stuff of exam hypotheticals - not
something lawyers and judges often see in real life. Judge Parker said
she "heard nothing" indicating that the lawyers had done their "minimal
duty that any attorney has in presenting a sworn affidavit." Unlike
voters, who can be duped through widespread lies from politicians and
via social media, courts are duty-bound to look for substantiated
evidence and established law before moving forward with someone's claim.
Rule 11 recognizes that lawyers might be motivated to lie, so it sets up
a system designed to deter unethical conduct in the future. Bad things
can happen to lawyers who try to play judges.
As Americans continue to reel from the Jan. 6 insurrection, with a wide
majority of those polled expecting election-related violence in the
future, judges are right to be vigilant about slamming the courthouse
doors to unscrupulous lawyers willing to exploit the judicial system for
cynical advantage. For Powell, Wood and the others who repeatedly
perpetuated a fraud about a legitimate election in our hallowed courts
of law, sanctions are probably coming. And the penalty should be severe.
Kimberly Wehle is a professor at University of Baltimore School of Law
and author of the books "How to Read the Constitution - and Why" and
"What You Need to Know About Voting - and Why." Follow her on Twitter
and Instagram @kimwehle.