Courts crack down on the ‘Kraken’ lawyers
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 fact.
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 making “misleading statements 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 accused of lying 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 apparently 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 claim 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 questions.”
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 standards.
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 lawyers’ shenanigans could be longstanding and incalculable. Without swift accountability, an unethical attorney’s 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 critics say 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.