The operatic diva has sung her last note. Courts all across the country have slammed the door on President Trump’s effort to overturn the November election, including the Supreme Court — twice.
Throughout the day Monday, members of the electoral college in 50 states and the District of Columbia will cast their votes designating Joe Biden as president-elect.
Yet Trump’s attack on the democratic process still leaves unfinished business: What should be done about the individuals who assisted Trump in this hopeless and irresponsible cause?
It’s time for bar associations to step up to the plate and discipline attorneys who abuse the system by flooding courts with claims lacking any basis in fact or in law.
Lawrence Tribe, Harvard Law School
Among Trump’s minions were 126 Republican members of Congress, who signed an amicus brief in the federal lawsuit Texas brought to challenge the votes in Georgia, Michigan, Wisconsin and Pennsylvania — a case the Supreme Court drop-kicked into oblivion on Friday.
Discipline for their assault on democracy will presumably be up to the voters in their districts, although House Speaker Nancy Pelosi (D-San Francisco) quite properly and accurately asserted that they “brought dishonor to the House” by choosing to “subvert the Constitution and undermine public trust in our sacred democratic institutions.”
Rep. Bill Pascrell (D-N.J.) called on Pelosi to refuse to seat the signers when the House reconvenes next month, though practically speaking, on the gonna-happen scale this is almost surely a “not.” But it’s proper to place the Texas lawsuit in context.
In his response to the Texas filing in the Supreme Court, Pennsylvania Atty. Gen. Josh Shapiro called it a “seditious abuse of the judicial process.”
It’s time for bar associations to step up to the plate and discipline attorneys who abuse the system by flooding courts with claims lacking any basis in fact or in law:https://t.co/k45wClBS0Q
— Laurence Tribe (@tribelaw) December 10, 2020
The efforts by Trump and other Republicans to overturn the presidential vote, however, were assisted by a legion of lawyers. Some plainly breached standards of professional practice by filing flawed or even fabricated documents with their lawsuits or lying to judges.
In those cases, “they should be sanctioned or disbarred,” says Robert Fellmeth, executive director of the Center for Public Interest Law and former discipline monitor for the California State Bar.
Fellmeth isn’t alone among legal authorities who believe that the election lawyers have crossed the line. “It’s time for bar associations to step up to the plate and discipline attorneys who abuse the system by flooding courts with claims lacking any basis in fact or in law,” constitutional law scholar Lawrence Tribe of Harvard Law School tweeted last week.
Garrett Epps, the author of five books about the Constitution, was especially withering in his assessment of the attorneys who mounted “a coordinated attempt to murder the American system of government” in his estimation.
“This crime is being carried out in public by lawyers who have taken an oath to uphold the Constitution they seek to destroy,” Epps wrote. “These chiseling shysters should face not just disbarment but monetary sanctions, and maybe jail.”
Epps aimed his fire not merely at Trump lawyer Rudolph W. Giuliani, who is licensed in New York, and former Trump lawyer Sidney Powell, who is licensed in Texas, the purveyors of the most extremely nonsensical legal theories and unsupported factual claims.
Epps focused chiefly on Texas Atty. Gen. Ken Paxton, who filed the lawsuit seeking to overturn the results in four other states in which 18 million Americans cast their ballots. He described Paxton’s lawsuit as “a deliberate effort to destroy American democracy for political advantage.”
That points to the unique status of lawyers in our judicial system. They’re labeled “officers of the court,” which underscores that they have a particular responsibility to the system going beyond serving a client.
It’s often said that every individual deserves legal representation in our courts, but that’s not the same as saying that every individual has a limitless right to have a lawyer bring an improper case. When the client’s claim is a dagger aimed at the system itself, lawyers have a responsibility to refuse to wield it.
“No one has a ‘right’ to file anything as egregiously abusive of the legal process as these various sub-frivolous lawsuits,” observes Paul Campos of the University of Colorado, Boulder. “Lawyers who abuse the privileges of their licenses to practice law by doing so are no different than drivers who abuse the privileges of their driver’s licenses by driving drunk.”
The standard of conduct in federal court is embodied in Rule 11 of the federal rules of civil procedure.
The rule says that by filing a paper in federal court, a lawyer effectively certifies that “it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;…the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument…[and] the factual contentions have evidentiary support.”
In other words, that lawyers are acting in good faith. It’s a violation to mislead a court, lie to a judge, or “bring a groundless action that you know is groundless,” Fellmeth says.
The path to sanctions or disbarment of a lawyer for unprofessional conduct is fairly straightforward. An investigation can start with a complaint to the state bar in the lawyer’s home state, or with an investigation by the bar on its own initiative. Judges can also bring misconduct to the attention of the bar — and “that’s a trigger for an investigation that’s high priority,” Fellmeth told me.
Sanctions can include letters of warning in a lawyer’s file, temporary suspensions, or requirements that the lawyer take an ethics class. Federal judges can refuse to admit lawyers under “pro hac vice” status, through which they allow lawyers licensed outside the judge’s district to practice in their court. Disbarment obviously is the nuclear option.
It’s not uncommon for federal judges to refer lawyers to their home state bars or even to prosecutors for misbehaving in their courtrooms.
None of the judges who has ruled against Trump or other Republican plaintiffs in more than 50 lawsuits challenging the vote has made such a referral. It’s possible that the overtly political nature of the plaintiffs’ claims has stayed their hand, for fear of appearing partisan. But these lawsuits raise issues well beyond partisan politics.
The closest any jurist came, as far as I can tell from the multitude of records, was a warning from Judge Paul Diamond of federal court in Philadelphia.
After eliciting an admission from a lawyer that his claim that Republican observers were not present during the counting of ballots despite the right to be on hand — there was “a non-zero number” of GOP observers present, the lawyer acknowledged — Diamond warned that if he found that “one side or the other has not acted in good faith,” he had “jurisdiction to police the conduct of parties and counsel before me.”
That said, the characteristics of other such cases cry out for sanctions. In Georgia federal court, for example, Powell spun a yarn connecting purported manipulation of voting results in Biden’s favor to a conspiracy rooted in a plan to manipulate Venezuelan elections to benefit dictator Hugo Chavez.
In that case, she filed a document in which the date had clearly been cropped out, then described it as “undated.”
In another Georgia case, Lin Wood, an attorney whose attacks on the election have been endorsed by Powell, filed an affidavit purporting to show anomalies in the vote count in 19 Michigan electoral districts.
All 19, however, were in Minnesota, not Michigan. Wood called the discrepancy “a simple mistake” in a statement to PolitiFact.
In dismissing cases before them, federal judges have repeatedly cited the lack of any documented evidence to support the plaintiffs’ demands to overturn votes in selected states.
Instead, they’ve presented “strained legal arguments without merit and speculative accusations unpled in the operative complaint and unsupported by evidence,” asserted federal Judge Matthew Brann of Pennsylvania in tossing a case in that state. “In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state.”
Other judges have questioned the very basis of the plaintiffs’ claims, much less the remedies they sought, under federal law. “Federal judges do not appoint the president in this country,” federal Judge Pamela Pepper of Wisconsin wrote in throwing out a lawsuit in that state. “One wonders why the plaintiffs came to federal court and asked a federal judge to do so.”
Just as disturbing is the behavior of some of these lawyers outside the courtroom. Over the weekend, Wood called on Trump to declare martial law “to clean up [the] election.” Powell endorsed the call with a one-word tweet: “Exactly!”
It’s evident that lawyers for Trump and the GOP pursuing these ridiculous cases and taking other steps to undermine the public’s confidence in U.S. elections are emboldened by the low probability of sanctions, much less disbarment. For the sake of the democratic process and as a warning to other members of their profession who may be toying with seditious instincts, they need to be disabused of this belief.
The boundaries separating energetic advocacy for a client from mere error and from professional misconduct may be murky, but the way to draw a line is to investigate what the plaintiffs’ lawyers knew, what they believed in good faith, and what they proposed to the courts and the public in bad faith. If their state bars took their responsibilities seriously, they would have already started investigating.
Now that judges, including Supreme Court justices ruling unanimously, have concluded that none of these cases has a basis in fact or law, the legal profession needs to act. As Epps said, disbarment may be too good for the worst offenders. But it may be the right place to start.
This story originally appeared in Los Angeles Times.