There is a big difference between baseless assertions and evidence. On Monday, lawyers advancing claims of election fraud in support of former President Donald Trump got a master class in the distinction.
Sidney Powell and other lawyers are defending themselves in federal court against allegations that their election fraud lawsuit in Michigan was so frivolous that it constitutes abuse of the court process. Powell and co. filed the lawsuit on behalf of a group of Michigan voters and nominated Republican electors alleging that the election was manipulated to elect Joe Biden. The plaintiffs dismissed the lawsuit in December after U.S. District Judge Linda Parker denied their motion for an injunction.
Now, counsel for the state of Michigan and the city of Detroit are asking the court to order the lawyers to reimburse taxpayers for the costs of defending the lawsuit, to refer the lawyers for disciplinary action and to ban them from practicing in the Eastern District of Michigan. No matter what the outcome is, the exercise offers a cold, hard look at how weak Team Trump's nationwide series of legal challenges really was.
Methodically walking through the affidavits submitted in support of the complaint, Parker exposed the utter absence of any factual basis to support the lawsuit, expressing concern that it was filed to "make the public believe there was something wrong in Michigan." In her opinion denying the injunction in December, Parker wrote that the complaint was based on "speculation and conjecture."
"In fact," she wrote, "this lawsuit seems to be less about achieving the relief Plaintiffs seek ... and more about the impact of their allegations on people's faith in the democratic process and their trust in our government."
During Monday's hearing, Parker read from affidavits submitted in support of the complaint. Each statement appeared to be completely lacking in evidentiary value. Witnesses made allegations such as a "belief" that ballots were altered, that they were "perplexed" by what they had seen and that plastic bags looked "as if" they contained papers that "could be" ballots. Parker noted a total absence of any probative value in affidavits that merely expressed subjective beliefs, asking repeatedly whether the lawyers had made any inquiry into the factual basis on which each affidavit was based. Hearing none, the court finally asked, "How could any of you, as officers of the court, present this in an affidavit?"
Powell responded by saying that because they were not required to file affidavits with a complaint in federal court, their misleading nature was irrelevant. Instead, she argued, the only way to verify their accuracy is "through the crucible of trial." That response ignores the requirements of Rule 11 of the Federal Rules of Civil Procedure, which states in its relevant part that by filing a pleading with the court, lawyers certify to the court that, to the best of the their "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the factual contentions have evidentiary support."
At least Powell tried to answer the question. L. Lin Wood, another lawyer whose name appears on the complaint, claimed that he had never even read it in the first place. He admitted only that he had offered to provide assistance to Powell, who he said added his name to the complaint without his knowledge. The judge noted, however, that Powell did not, at any time since the case was filed in November, ask to withdraw his name from the complaint and suggested that his position appeared to be "an after-the-fact assessment." That seems like a polite way of saying you're just making things up.
According to one report, 13,000 viewers watched at least part of Monday's virtual hearing, which was a rare opportunity to hold accountable the lawyers who were (and still are) facilitating Trump's specious election fraud lies. And clearly, it is one thing to make unsupported claims on television or social media. It is quite another to try to make them in court.
As former Trump campaign manager Corey Lewandowski once testified before a congressional committee, there is "no obligation to be honest with the media." The same is not true of lawyers before a judge. Lawyers have an ethical duty to maintain "candor toward the tribunal" and are considered officers of the court as well as representatives of their clients. Lawyers must also investigate claims in good faith before they file complaints to ensure that they are supported in fact and law.
By filing a lawsuit challenging the election results without any evidentiary support, Detroit counsel David Fink argued, the attorneys for the plaintiffs were "wielding weapons bestowed upon them as lawyers to abuse the court process."
Fink accused the lawyers of using litigation to "fuel the fire of online conspiracy theorists to support their efforts." "Because of the lies told in this lawsuit," he argued, "even today, millions of Americans believe the big lie that Joe Biden did not with the election, that somehow, the election was stolen."
Fink's point is important, because this is about more than sloppy or even unethical legal reasoning. Trump did not need to win a lawsuit challenging the election; he just needed to file one. That Trump's lawsuits were shoddy and that they failed across the board is beside the point. The goal has always been to provide some basis for supporters looking to fool people into believing his claims. This is the recipe for a disinformation campaign. And if loyal lawyers are disbarred along the way, so be it.
Judge Parker ended the hearing without a decision, asking the parties to submit supplemental briefs within 14 days. But it is hard to imagine what more could be said in defense of indefensible conduct. The lawyers in this case appear to have abused the court process to engage in information warfare. By supporting the narrative that Trump won the election, the lawsuit worked to undermine confidence in our elections in the U.S. and in democracy around the world. As Fink said, these lawsuits helped spark the Jan. 6 attack on the U.S. Capitol, where lives were lost.
Parker has an opportunity to send a strong message that the courts will not allow themselves to be used as propaganda machines. As U.S. District Judge Amy Berman Jackson said in sentencing Trump associate Roger Stone for lying to Congress and obstructing justice: In some places, "the truth still matters."