That Louie Gohmert lawsuit
If nothing else, Rep. Louie Gohmert (R-Texas) deserves credit for creativity and persistence, having found yet one more way to challenge Joe Biden’s election to the presidency. Along with all 11 defeated Republican electors from Arizona, Gohmert has filed a lawsuit against Vice President Mike Pence in a Texas federal court seeking to declare the Electoral Count Act of 1887 unconstitutional.
Under Gohmert’s theory, that would confer on Pence the exclusive authority to recognize electors when Congress meets on January 6, meaning, of course, that he could just accept the votes of the Republican’s “alternative” slate from Arizona, and perhaps other swing states.
There are plenty of problems with this case, including the usual issues of standing, timeliness and admissibility that have already resulted in 60 or so losses for the Trump campaign. I will leave it to others, however, to address the legal merits of Gohmert’s lawsuit. My concern is with the central factual premise of the case, which appears to be untrue, and which therefore raises questions about the attorneys’ responsibility for bringing the suit. Paragraph 5 of the complaint states,
“The Arizona Electors have cast Arizona’s electoral votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature” (emphasis added).
As far as I can tell, the bolded passage is a false statement of fact. The 11 Trump electors evidently did meet at the state capitol on December 14, when they purportedly cast their votes for the Trump/Pence ticket, but their actions were not endorsed by the Arizona legislature. Instead, it appears that they had the support of only 22 Arizona legislators (out of 90), who signed a self-styled “joint resolution” calling on Congress to accept the “alternate 11 electoral votes . . . for Donald J. Trump.”
As noted on the Excess of Democracy blog, the so-called “joint resolution” has no bill number and is not enrolled on any official legislative record. The 22 signatories include only five state senators, who could not possibly constitute a majority of that chamber even under the minimum quorum requirements in the Arizona Constitution. (The resolution was also signed by eight members-elect, who have no legal votes at all.)
In other words, the claim that the Republican electors had the endorsement of the Arizona Legislature is untrue. A later paragraph misleadingly states that “members of the Arizona Legislature passed a joint resolution,” implying that there had been a formal vote that “passed” the resolution, and without revealing that only 22 sitting legislators signed the document. This is precisely the sort of pleading that is prohibited by Rule 11 of the Federal Rules of Civil Procedure, which requires that all “factual allegations have evidentiary support.” Rule 3.3(a)(1) of the Rules of Professional Conduct likewise prohibits making “a false statement of fact or law to a tribunal.”
This is not a small oversight or a trivial discrepancy. The claim that the actual Arizona legislature has endorsed the Republican slate is at the very heart of the Gohmert complaint, providing the factual underpinning for an alleged dispute over “which electoral votes may be counted.” Absent the asserted legislative endorsement, there could not be two “competing slates of Republican and Democratic electors,” thus leaving nothing for Pence to do but count the Biden votes as officially submitted.
Lawyers can face sanctions under Rule 11 for making false statements in federal court pleadings, including “an order to pay a penalty into court” or to reimburse an opposing party’s attorney’s fees. Lawyer discipline under the Rules of Professional Conduct is handled by state authorities, with possible penalties ranging from reprimands to suspensions.
The Gohmert complaint was signed by a Texas lawyer; also listed on the complaint were attorneys from New York and Washington, D.C. The three jurisdictions have their own versions of the Rules of Professional Conduct, each of which includes Rule 3.3(a)(1).
I have previously opposed the use of lawyer disciplinary complaints against political adversaries, including one that was brought by a group of law professors against Kellyanne Conway. This situation is different. The untrue statement in the Gohmert complaint was made in a federal court pleading, not in the course of mere political advocacy. If believed, it would present a conflict between two authorized slates of Arizona electors, when in fact no such conflict actually exists. Such a claim falls squarely within Rule 11 and Rule 3.3(a)(1), both of which are intended to deter falsehoods in litigation.
Lawyers are entitled to advocate zealously for their clients, perhaps even to the point of desperate repetition. But they must draw the line at false statements of fact.
Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and the author of “The ‘Colored Hero’ of Harpers Ferry: John Anthony Copeland and the War against Slavery.”