Quinta Jurecic, the managing editor of Lawfare blog, writes at The Atlantic, There Aren’t Serious-Enough Consequences for Those Trying to Break American Democracy (excerpt):
[T]rump and his team are doing lasting damage to American democracy as the president struggles to come to grips with the reality of his loss. And yet, these lawyers and officials will likely face no real consequences for their actions—and if they do, those repercussions will not be enough to address the scale of the problem.
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Trump and his legal team’s various efforts are an affront to democracy, the most essential principle of which is that losers at the ballot box accept their defeat. And judges have not been gentle with Trump and his allies in court. “Come on, now!” a Michigan judge admonished the Trump campaign over a sloppy effort to stop votes from being counted. In a crucial decision that denied an effort to halt certification of Pennsylvania’s vote, Judge Matthew Brann wrote that the Trump campaign had presented the court with “strained legal arguments without merit and speculative accusations … unsupported by evidence.” The judge went on, “Our people, laws, and institutions demand more.”
The question is whether, having demanded more and received a pittance, laws and institutions will respond.
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Such moments of grace have been unfortunately lacking when it comes to the lawyers behind Trump’s push in the courts. Given the sheer absurdity of this effort, lawyers and commentators have raised the question of whether the legal teams seeking to upend the election result might face professional consequences. Lawyers have a duty not to lie to the court. They also have a duty to avoid making arguments without legal or evidentiary support. These restrictions may be responsible for the decision by the Trump campaign and some pro-Trump lawyers to drop some lawsuits shortly after filing them: When push came to shove, perhaps substantiating some of the wilder claims proved impossible. The fear of repercussions may also be behind prominent law firms’ choice to abruptly abandon this litigation.
Similarly, the rules governing lawyers’ professional behavior have created an odd split screen in the Trump campaign’s postelection work. Trump’s lawyers spin outlandish theories about massive election fraud at press conferences and on television, but make far more limited claims in court. “This is not a fraud case,” Rudy Giuliani acknowledged to Judge Brann during a hearing in the Pennsylvania certification case—only to then hold a press conference two days later in which he continued to peddle baseless claims of fraud alongside fellow Trump attorney Sidney Powell. (The campaign later announced that it had cut ties with Powell, who has claimed—without evidence, it should go without saying—that Georgia Governor Brian Kemp was bribed to rig his state’s vote as part of a conspiracy involving the CIA and the deceased Venezuelan President Hugo Chávez.)
Jeffrey Parness, who has written extensively on the rules governing attorney misconduct, suggested to me that judges could still take action against Trump’s lawyers if any of the remaining lawsuits step over the line. Judges will not want to be viewed “as someone who’s not concerned” by lawyers filing frivolous suits, Parness said. Most relevant to the current litigation may be Rule 11 of the Federal Rules of Civil Procedure, under which judges can sanction attorneys who make legally or factually meritless claims in court. Judges could order lawyers to pay fines to the court or to take legal-education classes, or even refer them to state bar associations for discipline. In the view of some experts, it’s past time for courts to take such actions: Writing in Slate last week, four legal-ethics experts argued that “the disciplinary case against certain of Trump’s lawyers is strong.”
I have been making this same argument.
But the road toward this kind of sanction is typically a long one, with discipline meted out toward the end of a case—if at all. “I do not expect to see state bars be first movers on these issues,” Carissa Byrne Hessick, a law professor at the University of North Carolina, told me. “They generally avoid taking actions that can be seen as political.” Courts may be hesitant as well. “Judges are extremely reticent to sanction lawyers in election-law cases, because they don’t want to look political,” said Leah Litman, who teaches law at the University of Michigan and has argued that elite lawyers have proved unwilling to hold their colleagues accountable for “facilitating the breakdown of norms that are integral to our constitutional system.” If courts do nothing, Litman told me, they are “enabling these gross excesses and abuse of our political processes.”
At this point, though, even if judges or state bar associations do hand down sanctions against lawyers involved in these cases, those repercussions will be too little, too late. The president is busy creating a parallel world for his supporters in which he never lost the election and Joe Biden is not the rightful leader of the United States—what Vox’s Ezra Klein termed “an autocracy-in-exile.” Already, far-right news networks such as One America News and Newsmax are profiting from this effort, siphoning viewers away from Fox News by enthusiastically embracing Trump’s claims of voter fraud. Half of Republicans already believe that Trump triumphed over Biden. “That press conference was the most dangerous 1hr 45 minutes of television in American history,” Chris Krebs, the former cybersecurity official fired by Trump for refusing to lie about the 2020 election’s integrity, tweeted of Giuliani and Powell’s appearance last week.
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[P]erhaps courts and state bars will decide that sanctions are needed to reaffirm their commitment to evaluating that difference. Yet despite how swiftly Trump’s legal effort has collapsed under judicial scrutiny, Giuliani and Powell are onto something. You don’t actually need to win in court if your main goal is to sow doubt and make headlines.
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As the election-law scholar Richard Hasen points out, the bogus arguments tossed around by Trump’s legal team “will make things worse when it comes to voting rights” by giving Republicans fuel for future restrictive voting laws, whether or not courts take those arguments seriously.
Even criminal sanctions are not enough to protect against the gravitational pull of disinformation. If prosecutions arise out of Trump’s postelection scramble, the unlucky defendants would likely become right-wing stars, feted on Fox News for their persecution by the “deep state.” Powell’s recent legal representation of Michael Flynn, Trump’s former national security advisor, is an argument against discounting the power that a pro-Trump defendant can have in right-wing media.
Here in Arizona, Maricopa County Superior Court Judge John Hannah Jr. did sanction the Arizona Republican Party ordering that the Secretary of State may file a motion to pursue legal fees against the Arizona Republican Party, citing a state law that allows for such awards when a party brings a claim “without substantial justification” or “solely or primarily for delay or harassment.”
But Judge Hannah did not directly sanction Jack Wilenchik, the lawyer representing the Arizona GOP, or refer him to the state bar association for discipline.
Nor did Maricopa County Superior Court Judge Daniel Kiley, to the best of my knowledge, sanction the plaintiff or refer plaintiff’s attorney, Kory Langhofer, for discipline in the “Sharpiegate” frivolous lawsuit I previously posted about. AZ GOP Lawyers And Their Clients Should Be Sanctioned By The Courts.
Blog for Arizona has been advised that lawyer and noted legal author Robert J. McWhirter, and lawyer and blog contributor Dianne Post, have jointly filed a bar complaint against Jack Wilenchik and Kory Langhofer. “We bring this matter to the attention of the State Bar as part of our duty as lawyers under ER 8.3. We asked the Bar to investigate not only this instance, but also the pattern of several frivolous elections cases these lawyers have filed.” Read the Langhofer Wilenchik Bar Complaint.
CORRECTION: Roxie Bacon, former president of the Arizona State Bar, is also a signer on the bar complaint. My apology.
Among the ethical the violations outlined:
ER 3.1. Meritorious Claims and Contentions
Arizona Rules of Civil Procedure 11(b), Representations to the Court
ER 3.3 Candor Toward the Tribunal
ER 8.4 Misconduct
I would hope that the lawyers for the state of Arizona who were opposing counsel in the courtroom with these AZ GOP lawyers will meet their ethical obligation under ER 8.3 by joining in this bar complaint. The judges in these cases should also make referrals for bar discipline as well. These abuses of the judicial system cannot be countenanced.
Many years ago I reviewed bar complaint files for the State Bar of Arizona to make an initial determination whether further action on the bar complaint was warranted by the bar. As I recall, this is a slow process which will take some time to be resolved. Do not expect to see swift justice. And you may not be happy with the discipline, if any, imposed by the State Bar of Arizona.
UPDATE: In an op-ed at the Washington Post (subscriber content), 25 former D.C. Bar presidents: Lawyers should not be complicit in Trump’s attack on democracy.