Sanction The Kraken?

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?

29 thoughts on “Sanction The Kraken?

  1. Natalie

    Short answer, no.

    Longer answer: A lawyer is permitted to test legal theories, even far-fetched legal theories, in service of their clients. There are serious problems with the suits that were dismissed (mostly in the requested relief IMO), but even a suit that fails to state a claim is not per se frivolous. I think Powell and Wood filed these suits with the thought they might win one here and there.

    Aside: Most judges seem to hate requests for sanctions.

    As far as undermining democracy (or whatever catch phrase is used), that didn’t happen. The system worked like it was supposed to – bad lawsuits were dismissed, rejected and denied.

    P.S. My husband doesn’t agree with me, but he’s wrong (again). 😬

      1. Gregory Prickett

        Not really. I’m one of the a$$hole lawyers who signed the petition that the attorneys involved be disciplined. I’m all for exploring the possible, but you don’t get to put out to the public all of the speculation about fraud and conspiracies, while at the same time telling the judges that you are not claiming fraud because you don’t have the evidence to plead it with particularity.

        Second, as a lawyer, you don’t get to be seditious, and propose martial law and a do-over election under military control just because your guy lost. Your oath requires you to support the Constitution, not eliminate it.

        Third, when you can go online and find people, including veterans, who are openly talking about taking up arms over the issue, and they are citing the BS spewed by the Kraken (who ended up being an auto mechanic in the service after he washed out of training for military intelligence), then yes, it undermined democracy.

    1. Jake

      “As far as undermining democracy (or whatever catchphrase is used), that didn’t happen. The system worked like it was supposed to…”

      We still haven’t had a peaceful transfer of power and the pile of evidence suggesting Trump will never accept his defeat grows by the hour.

        1. LY

          Will they really? Is that a part of their mission? I seem to recall, back in the Bush days, a couple protectees getting caught drinking under age. The SS response was that babysitting their choices wasn’t the mission, protecting them from assassination and kidnapping was, nothing else.

          Not saying that someone won’t have to forcibly escort him to the door but I’m not sure it will be the SS. It might be interesting to see which agency draws the short straw for that task, or if there’s a turf war over who gets to do it.

            1. Kevin P. Neal

              I _do_ care who does it. If the Army has to come in and remove him then that’s going to look very bad. Then we’ll be arguing over the definition of “peaceful transition of power”.

            2. SHG Post author

              I was being flip. That said, on January 20th, Trump is just another citizen, no different than anyone else who has no authority to be in the White House. His removal, should it come to that, will look bad, but that’s his choice. Power, however, will be peacefully transitioned whether he leaves on his own accord or not.

          1. Harvey a Silverglate

            The debate over “what if Trump does not leave voluntarily” is tiresome and, in the end, overly dramatic. There’s no need for anyone, nor any agency, to drag him out screaming. All they have to do is shut off the heat, air conditioning, water, and electricity. Everyone inside will shortly leave on his/her/their own accord.

    2. Harvey a Silverglate

      It would be a very bad precedent for a judge to impose sanctions in a case as political as an election dispute, even if frivolous. Frivolous suits are easily disposed of — dismissed very early, before the defendant has to expend much time, money and energy in response.

  2. TA5

    I think talking about it at the broad 30,000-foot level may not get to the heart of what is sanctionable. Election suits are by their very nature short-time frame suits in which full pre-suit examination is difficult if not impossible. So I think there is at least some tolerance at the early stages. But a number of these lawyers didn’t file just one suit. Various iterations of the suits were brought in multiple jurisdictions over a period of weeks. However excusable the shoddy pre-suit investigation was on the first one, it is increasingly less so as time goes on. And sanctionable behavior isn’t just measured on the date of filing the lawsuit, and so in cases that persisted long after the “expert” analyses were revealed as appallingly lacking, there’s a point at which a reasonable attorney says they can no longer be involved.

    The other aspect of some of these lawsuits, particularly those by Ms. Powell, is the extent to which misstatements and mischaracterizations of the record were made. The cropped certificate characterized as having no date, the assertion of Spyder’s qualifications, the characterization of GOP electors, and so on. Brad Heath and others chronicle this in much more extensive depth than I could. There is a clear and persistent pattern of misleading courts on things that should not have been errors, generally trending in one way. I’m not aware of circumstances in which Ms. Powell misstates the facts in a way that hurts her clients. It might have happened but that appears to be the minority circumstance.

    I don’t think it’s really about the central tenet or aims of the lawsuits per se. But I do think it’s fair context; given the remarkable nature of the suits, courts should have expected far greater candor than they got here.

    1. Richard Kopf

      TA5,

      You have hit upon the behavior that clearly warrants sanction under Rule 11 if true. That one thinks suits like these are goofy is weak sauce. Lack of candor is a different sake of cats.

      All the best.

      RGK

      1. Skink

        Rich–

        If this stuff plays out, they’ll be fortunate it’s only in state court. There’s no process to disbarment in your fancy courts: if the chief judge decides one is done, they’re done.

        1. Richard Kopf

          Skink,

          I agree that they are better off in the state courts if sanctions orders are implemented.

          As for the federal courts, Rule 11 sanctions and disbarment, I don’t have time to write a law review article that you would (rightly) dump in the waste basket before reading. All the best.

          RGK

  3. Grant

    The article is based on a phone interview with a lawyer who hasn’t filed anything blowing steam to a reporter.

    A Rule 11 motion, however, would be frivolous.

    Procedurally, you need to give them a chance to withdraw before you smack them down. Here, the pleading has already been dismissed, and they haven’t filed the sanctions motion. They missed their window.

    So whether the complaint should have been sanctionable or not is an academic question. Powell doesn’t pay any price.

    1. Richard Kopf

      Grant,

      Best recheck your facts. Often these demand letters are filed under seal and then only after the motion has been filed.

      Further such notice was given in state court by some of the same lawyers defending in the federal court. I doubt they would have neglected to do the same thing in the federal court but I suppose its possible.

      All the best.

      RGK

      1. SHG Post author

        More to the point, this post addressed the larger issue given the breadth of actions filed in various state and federal courts, and not only the specifics of the one Detroit application. The tree shouldn’t obscure the forest.

  4. TA5

    It’s a good point that the City’s motion is baseless and should be denied under 11(c)(2) as it doesn’t represent the safe-harbor status (and given that it’s premised on the dismissal, could not have been written and served 21 days before filing). Like Judge Kopf, I don’t find the overall goal a legitimate basis for sanction. And I think some of the laches/standing legal arguments, particularly in the unique context of a national election, have some good faith basis for eventual court reconsideration.

    The question of whether or not the lawsuits or pursuits were sanctionable in the abstract isn’t purely academic under Rule 11(c)(3), though. To be sure, my experience is that “own initiative” sanctions are very rare (and further undermined by lawyers inviting sua sponte sanctions through a procedurally improper (c)(2) motion). Perhaps different lawyers in different courts have seen it more frequently than my personal “never” but it seems most courts expect that strongly worded orders serve the chastening effect without the hassle of sanctions if the other side couldn’t be bothered to comply with the safe harbor. Whether that’s an adequate safeguard in an age of pathological doubling-down is an open question.

  5. B. McLeod

    This is an open effort to use Rule 11 to punish lawyers for undermining the City of Detroit’s truth. A host of “progressive” types have also filed ethics complaints in multiple jurisdictions. Basically, a resort to sanctions and ethics complaints for partisan purposes. This is not why these mechanisms exist.

  6. PseudonymousKid

    It’s one thing to bring a claim that may be bogus, but to maintain it when all signs point to imminent doom is another more serious problem. I want so much to digress into notice-pleading and the mistakes that were Iqbal and Twombly, but I’ll spare you. So, no to merely bringing the claims, but if the lawyers went beyond that then yes. Don’t drink the defense bar’s kool-aid, we’re allowed to bring hail mary claims in service of our clients.

  7. Steve King

    Crooked voting in Detroit? Surely you jest!

    My thanks to the author and others. I learn something here every day.

  8. Rengit

    Given federal pleading standards post-Twombly-Iqbal, sanctions wouldn’t be appropriate. In cases where you have iffy circumstantial evidence of your allegations, but no direct evidence (this is common in antitrust cases), you file suit hoping to survive a Rule 12(b)(6) motion and get to discovery, where maybe you find some stronger evidence for your claims like incriminating emails or grab the attention of FTC or DOJ and they issue their own civil investigatory demand. Statistical evidence, like it or not, is circumstantial evidence, and can be particularly compelling in some cases like employment discrimination, but it’s not the kind that is likely to stand on its own or even to survive a motion to dismiss for failure to state a claim.

    And judging by all the cases Trump has filed and lost, it seems that in election law cases, circumstantial evidence is viewed with a great deal of skepticism; in this respect, the cases were something of a new frontier, testing novel theories which the federal courts (wisely IMO) rejected, which is how much of our law has evolved. “It was a waste of time” isn’t a good basis for sanctions, and filing frivolous motions for sanctions because the opposing party lost can, ironically, get you sanctioned yourself.

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