the Future of Change

In the wake of the 2020 presidential election, lawyers representing various candidates, elected officials, voters, governmental bodies, groups and others sought to overturn the results of that contest, including filing a case directly in the Supreme Court.  To date, most of these cases have been dismissed, almost summarily.  In one of these cases, which was rejected quickly in November, the defendants in that action, including the Governor of Michigan, Gretchen Whitmer, argued that the lawyers had no basis to bring the case in the first instance, and, because of that, they should face sanctions by the court.  Generally speaking, lawyers are allowed to pursue creative claims, even unpopular ones, but they cannot make arguments that have no good faith basis in fact or law. More importantly when it comes to claims that seek to overturn an election, lawyers must remember that they have a unique role to play in our democratic system, and a special obligation to uphold the rule of law.

In her opinion on the request for sanctions, the judge hearing it, U.S. District Court Judge Linda Parker, based in Detroit, MI, summarized the question before her: “whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable.”  Judge Parker’s “short answer” as she put it: “yes.”  Indeed, she concluded as follows:

The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.

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.

Judge Parker highlighted that last sentence in the opinion.  And it is that language that really brings home the problem with the lawyers’ claims.  This was not a run-of-the-mill case where a lawyer might have made some unwitting error or unintentionally missed some key piece of evidence unfavorable to their client.  Judge Parker found that the lawyers bringing this case did not just play fast-and-loose with the facts and the rules.  Indeed, their goals went beyond winning the case.  She found their actions were designed to undermine the institutions of our democracy and the rule of law itself.  In addition to requiring the lawyers who brought the case to pay the legal expenses of the defendants, and to take legal education classes on pleading requirements and voting rights law, she has directed that her decision is to be shared with the disciplinary authorities in the states where the lawyers who filed the case—including Sidney Powell and Lin Wood, among others—for review by those authorities for further discipline, meaning their law licenses are likely on the line.  (Rudy Giuliani, another lawyer involved in seeking to challenge the results of the 2020 election, has already been suspended in New York State [and the District of Columbia as well] pending a full investigation of his advocacy around the 2020 election.)

In a recent piece published in the Hofstra Law Review, I explore whether this sort of activity—legal advocacy designed to undermine the rule of law—deserves special attention by disciplinary authorities here.