Trump’s Michigan Lawyer “Kraken” Sanctions Lessons

The only surprising thing about U.S. District Judge Linda Parkers’ order early last month imposing financial penalties on nine Trump attorneys is that it took so long to come. These attorneys led by chief conspiracy theorists Sidney Powell and Lin Wood have made wacky allegations of electoral fraud in Michigan and other key battlefield states, all of which have been categorically rejected by all courts that have brought them down. have examined.

The Kraken lawsuit, and others brought by lawyers for the Trump campaign, have imposed a stress test on the US legal system.

The Michigan lawsuit was part of a multi-state litigation that Powell called the Kraken after the mythical sea monster (whose release she said would destroy President Joe Bidens’ victory). Trump’s legal team made unsubstantiated allegations about the stuffing of computerized ballots by a deceased foreign dictator and the late-night filing of the ballots by mysterious trucks, which led Parker to castigate the lawsuit as a historic and profound abuse of the judicial process.

The Kraken lawsuit, and others brought by lawyers for the Trump campaign, have imposed a stress test on the U.S. legal system by seeking to co-opt the courts to advance a fabricated account of election results. The Parkers Order suggests that the American system has passed this test of accuracy, and so far. Guarding against this type of attack in the future requires a concerted effort by the entire legal profession. It is therefore crucial that judges and bar lawyers take seriously what they can and must do better.

The Parkers Order offers judges a master class on how to mobilize the important tools at their disposal to protect against efforts to convert courtrooms into platforms for partisan and conspiratorial performances. These far-reaching tools are derived from laws, court rules and the inherent powers of judges to enforce standards of conduct in their courtrooms. This means enforcing rules against vexatious litigation, frivolous claims, and failure to conduct independent analysis and fact-checking required by court officials.

Perhaps most important is Parkers ‘forceful decision on lawyers’ duty of truth. Of course, it is not possible for lawyers to verify every detail of claims made in urgent litigation. However, they have an absolute duty to reasonably investigate the validity of the facts and laws they assert in their legal briefs.

This is a critical point, as attorneys in the Michigan lawsuit and others on behalf of then-President Donald Trump sought to shield their patently absurd claims by masking them with vague claims by anonymous experts in unverified affidavits. Parker dismissed this legal sleight of hand by showing, for example, how lawyers have remained silent after learning that their top military intelligence expert claims the voting machine hack never completed basic training. , while their statistical expert analysis of turnout rates (falsely claiming one reported a 460 percent turnout in Zeeland Charter Canton) did not use official precinct figures.

The Parkers Order also makes it clear that lawyers do not have the First Amendment right to say whatever they want in court in the service of a political objective. On the contrary; the privilege of being a lawyer comes with a duty of frankness and honesty. While the First Amendment protects public statements and even lies (which politicians make all the time) outside the courts, lawyers are prohibited from making completely unfounded claims as mythical as the Kraken itself like this. Whimsical fable: At some point after the 2016 election, software was installed that programmed tabulation machines to transfer a percentage of the mail-in votes from Trump to Biden.

While Parkers’ decision is a tour de force of rigorous factual analysis and a much-needed retort to the wrapped-up unreality of the Kraken Universe, it also reveals the limits of the system.

Yet while Parkers’ decision is a tour de force of rigorous factual analysis and a much-needed retort to the wrapped-up unreality of the Kraken universe, it also reveals the limits of the system. It should be noted that Parker only dealt with the serious misconduct of the lawyers at the request of the defendants, which is part of the reason why the penalties took so long to come and they only came after so much damage. Going forward, courts should be more proactive in policing dishonest lawyers and not wait for others to complain before taking action to end conduct inconsistent with the rule of law.

Additionally, the Parkers order looks primarily backwards, forcing Trump’s lawyers to pay defendants’ legal fees (Parker also ordered lawyers to undergo continuing legal education, a tool that should be used more often). While the notice is intended to deter future misconduct by hitting lawyers in the wallet, lawyers in this case are unlikely to be deterred by fines, given that they can be funded by clients with almost unlimited access to law. funds that will do whatever it takes to advance their political agendas.

That means it’s now up to the state bars with authority over those attorneys in Texas for Powell, Georgia for Timber to make sure they don’t have the opportunity to do it again. Rudy Giuliani, a colleague of Powell’s elite strike force, has already had his license suspended in New York. Based on the Parkers Order, there are at least four grounds for such discipline against Michigan attorneys.

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First, lawyers are required to act with basic competence. This does not mean that they have to turn every stone before filing a case, but it does require adequate preparation and a basic knowledge of the law. It seems obvious, but in the Michigan lawsuit, attorneys claimed various violations of the law based on facts that, while true, did not violate any law. For example, they alleged that officials violated Michigan election law by counting unposted ballots, but in Michigan the ballots can be hand delivered and therefore do not have to. need postmarks.

Second, lawyers are not permitted to assist clients in conduct which they know to be fraudulent. As Parker made clear, the Trump campaign’s election fraud allegations were themselves part of a massive fraud against the American public. The lawsuits have been the cornerstone of this program, laying the groundwork for a disinformation campaign disseminated via social media. Remarkably, Powell doesn’t even pretend to support his savage accusations. On the contrary, in defending herself against a libel action brought by the Dominion voting machine company, she states that reasonable people would not accept the allegations in the Kraken action as true, thereby conceding her own ethical fault.

Third, lawyers are prohibited from making unfounded claims. Here, Trump’s attorneys essentially admitted that the lawsuit was bogus by conceding that they were seeking a remedy preventing the certification of Michigan voters after that certification had already taken place. In addition, lawyers cannot knowingly make a false statement of fact or law to a court. This knowledge can be inferred when lawyers put their heads in the sand relying on unverified affidavits or speculative statements that are contradicted by all known objective evidence.

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Finally, it is professional misconduct on the part of lawyers to do anything detrimental to the administration of justice. As the Parkers Order describes in mind-boggling detail, the Michigan lawsuit was brought for the purpose of deceiving a federal court and the American people into believing that rights have been violated regardless of whether any laws or rights have been violated. This is a fault on an epic scale. While Powell and his Kraken colleagues didn’t storm the Capitol, they arguably did something significant. To cast doubt on the integrity of American democracy in an attempt to steal an election is the closest thing to a coup that the American system has known. If state bars with regulatory authority over these lawyers do not act to punish this historic abuse, they will invite future attacks. And next time, it’s not sure that the system will hold up.

Scott L. Cummings

Scott L. Cummings is Robert Henigson Professor of Legal Ethics and Faculty Director of the Legal and Professional Ethics Program at UCLA Law School.

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