Judge minces no words when sanctioning Trump lawyers Sidney Powell et al.

Federal judge Linda V. Parker had the task of determining if Trump election lawyers including Sidney Powell and Lin Wood should receive sanctions for misuse of the judiciary system in Michigan. Her opinion isn’t just clear, it’s outspoken, bold, and unequivocal — a rarity in legal works.

Judge Parker’s 110-page opinion states, in meticulous detail, that Trump’s lawyers’ only real purpose was to sway public opinion, and that their conduct is so far outside of what is permissible in the courtroom that the state should sanction them, make them take further courses in legal procedure, and consider disbarring them.

The opening of Judge Parker’s opinion is a masterpiece of clarity

Here’s how the opinion begins. You should start anything you write with paragraphs this bold:

This lawsuit 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. 

Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order. 

Here’s the gist of the argument:

Specifally, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable. 

This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things. To be clear, for the purpose of the pending sanctions motions, the Court is neither being asked to decide nor has it decided whether there was fraud in the 2020 presidential election in the State of Michigan. Rather, the question before the Court is whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes. 

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. 

Some juicy excerpts

It’s hard to defend the actions of these lawyers in the face of these words from the judge:

[D]espite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way.

She cited social media postings to hold attorneys accountable.

[Attorney Lin] Wood’s social media postings undermine his current assertions, as do his statements in other court proceedings. . . . Wood tweeted a link to an article containing a copy of the motion, stating “[w]hen you get falsely accused by the likes of David Fink and Mark Elias . . . in a propaganda rag like Law & Crime, you smile because you know you are over the target and the enemy is runningscared. . . . Even more importantly, prior to the July 12 hearing, Wood took credit for filing this lawsuit [which he has claimed he is not responsible for.] 

For these reasons, while Wood now seeks to distance himself from this litigation to avoid sanctions, the Court concludes that he was aware of this lawsuit when it was filed, was aware that he was identified as co-counsel for Plaintiffs, and as a result, shares the responsibility with the other lawyers for any sanctionable conduct. 

The judge clarifies that the motives here related to news coverage, not the actual work of the courts — which is an abuse of process:

In sum, each of the six matters discussed . . . individually evince bad faith and improper purpose. But when viewed collectively, they reveal an even more powerful truth: Once it appeared that their preferred political candidate’s grasp on the presidency was slipping away, Plaintiffs’ counsel helped mold the predetermined narrative about election fraud by lodging this federal lawsuit based on evidence that they actively refused to investigate or question with the requisite level of professional skepticism—and this refusal was to ensure that the evidence conformed with the predetermined narrative (a narrative that has had dangerous and violent consequences). Plaintiffs’ counsel’s politically motivated accusations, allegations, and gamesmanship may be protected by the First Amendment when posted on Twitter, shared on Telegram, or repeated on television. The nation’s courts, however, are reserved for hearing legitimate causes of action.

What is most important, however, and what very clearly reflects bad faith is that Plaintiffs’ attorneys are trying to use the judicial process to frame a public “narrative.” Absent evidentiary or legal support for their claims, this seems to be one of the primary purposes of this lawsuit. 

[T]here is a basis to conclude that Plaintiffs’ legal team asserted the allegations in their pleadings as opinion rather than fact, with the purpose of furthering counsel’s political positions rather than pursuing any attainable legal relief. . . .

It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences. Although the First Amendment may allow Plaintiffs’ counsel to say what they desire on social media, in press conferences, or on television, federal courts are reserved for hearing genuine legal disputes which are well-grounded in fact and law. 

What about that First Amendment? It doesn’t apply in a courtroom:

[T]he motion to dismiss “justifies lawyers being afforded the same type of Constitutional protections as journalists,” “who . . . would lose the protection afforded to them by the Supreme Court . . . if they were ‘drawn into long court battles designed to deconstruct the accuracy of sources on which they rely.’” 

Attorneys are not journalists. . . . Perhaps this confused understanding as to the job of an attorney, and what the law says about the attendant duties and obligations, is what led Plaintiffs’ counsel to simply copy and paste affidavits from prior lawsuits. Perhaps not. But what is certain is that Plaintiffs’ counsel will not escape accountability for their failure to conduct due diligence before recycling affidavits from other cases to support their pleadings here. . . .

An attorney’s right to free speech while litigating an action “is extremely circumscribed.” . . . Attorneys “voluntarily agree[] to relinquish [their] rights to free expression in [] judicial proceeding[s]” and “voluntarily accept[] almost unconditional restraints on [their] personal speech rights” when before a court. . . . For that reason, the Sixth Circuit has “see[n] no basis for concluding that free speech rights are violated by a restriction on that expression.”

The judge calls out ridiculous actions by Trump’s lawyers

When the opportunity for ridicule appears, the judge defers . . . but you get the idea.

on December 14, “three [] [] Plaintiffs were, in their opinion, properly elected as electors” 

In other words, Plaintiffs’ attorneys maintain that this lawsuit was no longer moot after December 14 because three Plaintiffs subjectively believed that they had become electors. The attorneys cite no authority supporting the notion that an individual’s “[personal] opinion” that he or she is an elector is sufficient to support the legal position that the individual is in fact an elector. Of course, such a belief is contrary to how electors are appointed in Michigan. . . . In any event, Plaintiffs’ attorneys fail to provide a rational explanation 

Here’s how she addresses the abuse of legal procedure when any further action would be irrelevant:

Plaintiffs conceded that their claims were moot after December 14. Yet, in the month that followed, Plaintiffs refused to voluntarily dismiss their claims, forcing Defendants to file their motions to dismiss and the Court to decide Plaintiffs’ motion for additional time to respond to the motions to dismiss, which Plaintiffs ultimately did not do. In the end, Plaintiffs’ attorneys prolonged the inevitable and “caused both [the State Defendants and Intervenor-Defendants] and the [C]ourt to waste resources” in the meantime. 

The Court finds that Plaintiffs’ counsel unreasonably and vexatiously multiplied the proceedings in this case and their arguments to the contrary are unavailing. 

I’m taking note of this excellent use of the word “vexatiously” and look forward to using it in the future.

Here the judge addresses the inappropriate use of the slogan “fraud vitiates everything”:

Apparently [the 1878 case] Throckmorton’s quotation of the maxim “fraud vitiates everything” is a refrain that has been oft-repeated on social media by those who question the results of the 2020 presidential election and believe Former President Trump should be declared the winner. The City is correct that Plaintiffs’ counsel’s citation to Throckmorton is puzzling, both because the case relates to a nineteenth-century land grant and has nothing to do with election law and because the Supreme Court held that the grant could not be collaterally attacked on the basis that the judgment was procured by fraud.

Here’s her response to the “empty-head, pure heart” argument.

Plaintiffs’ attorneys argue that they genuinely believed the factual allegations in this lawsuit, and otherwise filed this suit and the accompanying documents in good faith. . . .They also argue that the affiants genuinely believed the same and submitted their affidavits also in good faith. . . . Because all of this was done in good faith, counsel contends, they should not be sanctioned. 

Of course, an “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions. And the good or bad faith nature of actions or submissions is not what determines whether sanctions are warranted . . . no reasonable attorney would accept the assertions in those reports and affidavits as fact or as support for factual allegations in a pleading when based on such speculation and conjecture. And no reasonable attorney would repeat them as fact or as support for a factual allegation without conducting the due diligence inquiry required . . .

There were many affidavits presented from people who observed things happening around the election. Most were not credible, consisting mainly of “I appeared to see” and “It looked suspicious” type arguments. Then Trump’s attorneys made claims based on the affidavits, misrepresenting what was in them.

Plaintiffs’ counsel presented affidavits that were based on conjecture, speculation, and guesswork. 

To support the allegation that “unsecured ballots arrived at the TCF Center loading garage, not in sealed ballot boxes, without any chain of custody, and without envelopes, after the 8:00 PM Election Day deadline,” Plaintiffs quote the affidavit of Matt Ciantar . . . which is a masterclass on making conjectural leaps and bounds: 

Finally, Judge Parker applies the appropriate sanctions

These sanctions include not just costs, but remedial legal education and potential disbarment for Trump’s attorneys:

This lawsuit should never have been filed. The State Defendants and the Intervenor-Defendants should never have had to defend it. If Plaintiffs’ attorneys are not ordered to reimburse the State Defendants and the City for the reasonable fees and costs incurred to defend this action, counsel will not be deterred from continuing to abuse the judicial system to publicize their narrative. Moreover, this Court has found that Plaintiffs’ counsel initiated this litigation for an improper purpose, rendering this the “unusual circumstance” in which awarding attorneys’ fees is warranted. 

Further, given the deficiencies in the pleadings, which claim violations of Michigan election law without a thorough understanding of what the law requires, and the number of failed election-challenge lawsuits that Plaintiffs’ attorneys have filed, the Court concludes that the sanctions imposed should include mandatory continuing legal education in the subjects of pleading standards and election law. 

Lastly, the conduct of Plaintiffs’ counsel, which also constituted violations of the Michigan Rules of Professional Conduct, . . .calls into question their fitness to practice law. This warrants a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted . . . 

Bold but not mean

Here’s what you can learn from this.

When dealing with outrageous behavior, don’t fight back with more outrage.

Use a balanced tone, clarity, facts, and reasoning. But don’t mince words.

No one should be confused about where you stand. But no one should be able to credibly accuse you of bias.

A factual argument will win the day — especially when the facts are so damning.