Courts and bar disciplinary authorities have lines. Steal money from the escrow account and there’s a very good chance they’ll pull your ticket. But engage in frivolous litigation? Undermine faith in democracy in the process? On the one hand, judges are reluctant to chill challenges by putting the lawyers willing to take the chance of questioning widely accepted views at risk, as long as there is a good faith basis to argue for a change in law.
But that’s not what Sidney Powell and L. Lin Wood were up to, and the City of Detroit wants sanctions.
The City of Detroit wants Sidney Powell and her self-styled “Kraken” team to face sanctions for “frivolously undermining ‘People’s faith in the democratic process and their trust in our government.’”
The Motor City’s motion asks a federal judge to fine the lawyers, ban them from practicing in the Eastern District in Michigan and refer them to the Wolverine State’s bar for grievance proceedings.
District Judge Linda Parker was not kind in her shredding of Powell’s suit, Beyond the problem of laches, the court found it was substantively baseless.
As for the supposed fraud claims, the judge noted they are “an amalgamation of theories, conjecture, and speculation that such alterations were possible,” emphasizing that last word in original.
“With nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden, plaintiffs’ equal protection claim fails,” the ruling states.
That’s been the crux of the arguments, “how is it possible that….” Except that’s not evidence. Those are questions, and much as asking questions is a good way to find information, it’s the information found that’s evidence, provided the answers come from qualified, legitimate and reliable sources. That didn’t happen.
On the other hand, every court that has heard her conspiracy theories about a supposed plot involving Dominion voting machines, dead Venezuelan strongman Hugo Chavez, bipartisan government officials and election workers in counties across the United States found that narrative untethered to reality.
“The key ‘factual’ allegations from the supposed fact witnesses, some of whom attempt to cloak their identities while attacking democracy, have been debunked,” the sanctions motion states. “The allegations about supposed fraud in the processing and tabulation of absentee ballots by the City at the TCF Center have been rejected by every court which has considered them. If any of the claims in this lawsuit had merit, that would have been demonstrated in those cases.”
Powell has deployed a parade of anonymous and supposedly confidential witness, including a purported military intelligence expert code-named “Spyder” who later admitted to the Washington Post that he was actually an auto mechanic named Joshua Merritt with no such work experience.
Even people who were not necessarily on board with Trump’s, and the Kraken team’s, challenges to the vote were of the view that he had the right to challenge the outcome and the suits should be allowed to “play out” to see what became of them. They have. They lost. Overwhelmingly.
But it’s now on to the next step, beyond the crushing defeat in at least 59 cases as of now. Detroit has moved for Rule 11 sanctions.
“This abuse of the legal process at the expense of states should not go unpunished,” Fink said.
If the sanctions motion moved forward in court, Powell could be forced to post a $100,000 bond before filing any more appeals of her lawsuit, on top of the other penalties Fink requested.
Was this a legitimate effort, even if far-fetched and based on extremely dubious “evidence” that no competent lawyer would proffer to a court?
“This is not a legitimate lawsuit; it is a public relations weapon being used to advance the false narrative that our democratic system is broken,” Detroit’s motion thunders. “This abuse of our legal system deserves the strongest possible sanctions.”
To be clear, losing does not make a suit frivolous. Pretty much every case has a winner and a loser, and there’s nothing about being on the south end of a ruling that makes a lawyer’s actions inherently sanctionable. But lawyers also understand that when they commence an action without any evidentiary basis, any legitimate, good faith belief that the action can be sustained, they’ve crossed the line.
That many in the public have found the public relations aspect of these challenges persuasive, whether because they believed claims despite the complete absence of any factual basis or upon the “expertise” of auto mechanics posing as military intelligence experts, random nutjobs or shills willing to say whatever is necessary for the cause, evidence isn’t what you want it to be because you want to believe it to be true. Evidence must be competent. You might not be able to distinguish competent and material evidence from garbage, but one would expect Sidney Powell to be able to do so.
Did Powell cross the line in court? Did Wood, Giuliani, others, who have pushed the challenges and failed miserably, time after time after time? The consequences of this Kraken nonsense, which was framed by the now-well-known baby lawyer, Jenna somebody, has had a deleterious affect on public trust in the election despite its overwhelming rejection in court. But was bringing these challenges so frivolous, so baseless, as to subject the lawyers to fines, costs and disbarment?
“This is not a minor lawsuit; it is a dangerous attack on the integrity of the democratic process for the election of the President of the United States,” Fink wrote. “The parties and their attorneys should be held to the highest standards of factual and legal due diligence; instead, they have raised false allegations and pursued unsupportable legal theories. Then, after being corrected by the defendants and the Courts, they refuse to dismiss their lawsuit. Apparently this frivolous lawsuit continues because it serves other, more nefarious, purposes. While the pending complaint cannot possibly result in meaningful relief, it does serve the purpose of conveying to the world the impression that something fraudulent occurred in Detroit’s vote count.”
There is no doubt that the consequences of Trump’s refusal to accept that he’s the biggest loser, and his persistent lies to create the delusion otherwise, had huge, and possibly lasting, consequences for our national democratic integrity. But is that Sidney Powell’s fault, such that she should pay the price for being the lawyer for these challenges?