Deception, repeatedly rejected meritless claims and two 'beyond the pale' 11th-hour lawsuits justify legal discipline, perhaps even disbarment...
UPDATE, 1/1/21: Ohio State Law Professor describes latest assault on election as 'breathtaking and preposterous'; UPDATE, 1/2/21: Court dismisses Gohmert 'legal' challenge; UPDATE, 1/3/21: 5th Circuit panel denies Gohmert motion for an expedited appeal; UPDATE, 1/4/21: DC District Court denies motion for a preliminary injunction; contemplates imposing sanctions...
By Ernest A. Canning on 12/31/2020, 10:35am PT  

As recently reported by John Kruzel of The Hill, the attorneys taking part in Donald Trump's dishonest effort to overturn the results of the Nov. 3 Presidential election "face mounting ethics complaints" that could result in sanctions ranging from fines to censure, suspension or even disbarment.

Michigan's Democratic Attorney General Dana Nessel recently explained why she is seeking to have Team Trump attorney Sidney Powell and others subjected to discipline, including disbarment, for professional misconduct in conjunction with continuing frivolous legal efforts to overturn the results of the Nov. 3 Presidential Election...

Every lawyer, in order to become a licensed professional, takes an oath of office in which they swear to uphold the Constitution. Instead, she [Powell] has done nothing but undermine it. There are so many Rules of Professional Conduct. You can't bring frivolous lawsuits that are not based on fact or the law. You can't have fraud, deceit, misrepresentation, things that are prejudicial to justice. You can't knowingly bring evidence that is false, or make misleading claims. She's broken each and every one of these in all of her cases. Just in the Michigan cases alone, she's breached each and every one of these codes of conduct.

Nessel's observations are certainly consistent with Rules 3.1 and 3.3 of the Michigan Rules of Professional Conduct [PDF] which prevent the pursuit of frivolous claims and forbids attorneys from knowingly making false statements of fact or law to any tribunal. "An action is frivolous," Rule 3.1 explains, "if the lawyer is unable to make a good-faith argument on the merits of the action taken, or to support the action taken by a good-faith argument for an extension, modification, or reversal of existing law."

MI's rules are in line with the American Bar Association's Rules of Professional Conduct as well.

Nessel is by no means alone in her critique of the dubious legal tactics being taken by a number of attoneys allied with Trump. In Delaware, a state judge, on his own motion, issued an order "to Show Cause why the permission to practice" pro hac vice (in a specific case), previously extended to out-of-state Georgia Attorney L. Lin Wood, Jr., should be "revoked". The court believes Wood may have "engaged in conduct in other jurisdictions, which, had it occurred [in a Delaware case], would violate the Delaware Lawyers' Rules of Professional Conduct."

There's a growing body of evidence that multiple attorneys have knowingly pursued frivolous claims that in hopes of undergirding Trump's dangerous and baseless conspiracy theories that the election was somehow stolen from him. They've piled up 59 losses in state and federal courts, many entailing outright dismissals by judges who described the pleadings as "without merit". Yet, that didn't stop right-wing groups of attorneys from recently filing 11th hour federal complaints that are not merely meritless but beyond the pale. So much so, that the D.C. and state bar associations might consider imposing the ultimate tool of attorney discipline --- disbarment...

Relentless pursuit of frivolous claims

In a recent Tweet, Democratic Party election attorney, Marc Elias, noted that right-wing Republicans and Donald Trump have lost 59 of the 60 "legal" cases they have filed challenging the results of the November 3 Presidential Election. After two remaining cases, one in New Mexico and the other in Washington D.C. are decided, Elias proclaims, the Team Trump record in these cases will be one insignificant win and 61 losses.

The 59 losses to date were predictable because the cases were frivolous. In every case, contrary to the solemn oath every attorney takes to support and defend the Constitution, Trump-backing attorneys sought to subvert the Constitutional right of the People to elect their next President, using false, speculative and often evidence-free claims. Trump's allegations of widespread "voter fraud" and a "stolen election", which his attorneys amplified during out-of-court public appearances, were so baseless that even Tucker Carlson of Fox "News" proclaimed such charges to be "unfounded". Nonetheless, the Trump "legal" team persisted.

In a federal case, where Team Trump sought to disenfranchise seven million Pennsylvania voters --- a case in which Rudy Giuliani admitted, in open court, that he had no evidence of fraud to present to the court --- Trump's attorneys presented what conservative Federal Judge Matthew Brann described as "strained legal arguments and speculative accusations, unpled in the operative complaint and unsupported by the evidence."

U.C. Irvine Law Professor Rick Hasen, a widely-cited election law expert, described Judge Brann's decision as "scathing". He described Team Trump's ensuing appeal as seemingly "crazy", "bizarre" and "weak". Thus, it came as no surprise that a 3-judge Third Circuit appellate panel unanimously upheld Judge Brann's decision to dismiss the case without leave to amend their complaint.

As Third Circuit Judge Stephanos Bibas, a former University of PA law professor, member of the ultra-conservative Federalist Society and Trump-appointee himself explained in the decision, "Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here." The court's scathing rebuke also noted that "Voters, not lawyers, choose the president. Ballots, not briefs, decide elections."

But it is the absence of either "specific allegations" or "proof" that exposes the effort to overturn the results of the election in PA as a "frivolous" undertaking.

None of the 59 losses referenced by Elias entailed meritorious factual and legal argument. As both Hasen's Election Law Blog and Elias' Twitter account document, at length, most were dismissed outright in both state and federal trial courts --- decisions later upheld by appellate courts, often by Trump-appointed federal jurists. That includes the U.S. Supreme Court denial of a specious claim filed by the under-indictment Texas Attorney General.

Beyond the pale

On Dec. 22, the Thomas More Society, a right-wing, anti-abortion law firm based in Chicago, filed a 116-page complaint [PDF] on behalf of a number of self-described "Voters Alliance" groups, individuals and several state representatives. The lawsuit was filed in a U.S. District Court in Washington, D.C. The case is so bizarre that an astounded Marc Elias tweeted that he "can't even describe it. It's really dumb."

The farcical suit, Loyola Law Professor Justin Levitt quipped, seeks nothing less than "to invalidate all of the federal and state laws about how [Presidential] elections are and have been certified for at least 130 years." Specifically, at paragraph 56 of their complaint, the Thomas More Society attorneys attempt to contest the constitutionality of sections of the Electoral Count Act that was passed by Congress in 1887. That Act has been applied to every Presidential Election since 1888. In other words, pro-Trump attorneys are challenging the constitutional validity of a law that has governed the last 33 U.S. Presidential Elections!

Attorneys representing Rep. Louie Gohmert (R-TX) and the losing Trump Slate of Electors in Arizona, offered up the same objection to the constitutionality of the Electoral Count Act in a separate complaint filed on December 27 in a U.S. District Court in TX. They seek expedited relief.

In a Dec. 31 Response filed on behalf of Vice President Mike Pence, the only named Defendant in the Gohmert case, the U.S. Department of Justice (DOJ) argued that the District Court should not address the constitutional claim because the case can be disposed of on "threshold issues." The plaintiffs' lack Article III standing and there is no case or controversy as between the plaintiffs and VP Pence. The DOJ also argued that "the Constitution's Speech or Debate Clause...prevents the other Branches of Government from questioning Congress in connection with 'legislative acts'", which have "consistently been defined as an act generally done in Congress in relation to the business before it."

The tally that will take place on Jan. 6 is a "legislative act".

As explained by Scott Bomboy of Constitution Daily, the Electoral Count Act had its origins in the disputed 1876 Presidential Election between Samuel Tilden and Rutherford B. Hayes. In that instance, several States "sent rival electoral ballots to be counted by Congress." The Electoral Count Act, as interpreted by the Congressional Research Service, according to Bomboy, creates a presumption that States can only submit a single slate of Electors, and allows for a process during a joint session of Congress to ensure the slate submitted is the genuine one approved by the State itself.

If, during this election cycle, one or more States submitted a competing Slate of Electors, as occurred in 1876, there might have been an occasion to contest the validity of the Electoral Count Act in Congress on January 6. But, from the perspective of the Thomas More Society attorneys, the inconvenient truth can be found in the fact that all 50 States, in accordance with their duly certified results, submitted only one Slate of Electors --- this despite an effort by Trump Campaign to create its own "alternative" Slates of Electors.

In a recent Memorandum filed in the U.S. Supreme Court, Pennsylvania described the Trump Campaign's "alternative" Slate of Electors concept as "bonkers".

The unassailable truth is that, over the course of 133 years, no State has either submitted more than one Slate of Electors or contested the constitutionality of the Electoral Count Act of 1887.

Frivolously ignoring that all contested State certified results were subsequently upheld by state authorities and both state and federal courts, the Society attorneys argued that the election laws themselves in five battleground States --- PA, MI, WI, GA and AZ --- were unconstitutional. Because those five States, in accordance with their own election laws that were in place when millions of Americans voted, submitted to Congress the electoral votes cast by Slates of Electors for Joe Biden, the Society attorneys named, as Party Defendants, the Governors and leaders in the Legislatures of all five States.

Even if any of the plaintiffs in these two 11th-hour Hail Mary lawsuits had standing --- a prerequisite to filing a lawsuit in federal court --- (they don't), there's zero chance they can prevail. In our constitutional democracy, attorneys don't decide elections. We the People do.

As constitutional scholar, Edward B. Foley observed in a Washington Post op-ed, all 50 States had a constitutional obligation to submit the officially tallied Electoral College votes to Congress. On January 6, Congress, in turn, must decide whether to accept the official Electoral College tally --- a function that, according to Foley, is ordinarily treated as "a formality." In this instance, Foley describes "Trump's incessant and utterly evidence-free claims of a 'stolen' election" as "an exercise of demagoguery unparalleled in U.S. history. He notes that, irrespective of any objections Gohmert and others may raise, both the House and Senate "will certainly affirm Biden's victory".

These latest frivolous attempts to overturn a Presidential election that wasn't even close will fail. But neither the courts nor the relevant bar associations should stop there. A message has to be sent. Meritless and deceptive efforts by any attorney to destroy our constitutional democracy cannot be tolerated. Sanctions, potentially including disbarment, are necessary to protect our Republic.

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UPDATE, 1/1/2021: In a Twitter thread, Ohio State Law Professor Ned Foley sets forth a legal position asserted by Gohmert's attorneys in a Reply to the DOJ's Response. Foley described the Gohmert legal position as "breathtaking and preposterous."

The Reply makes the astounding claim that "a Vice President can 'ignore all electors' whose votes he dislikes. The Constitution," Foley added, "never intended this monarchical power to disenfranchise Electoral College votes based on personal whim."

Foley also took issue with the claim that the Electoral Count Act of 1887 is unconstitutional. Foley notes that Congress's power to enact that Act arises out of the Necessary and Proper Clause of the Constitution. "The Twelfth Amendment's simple description of a special joint session of Congress for counting Electoral College votes", Foley asserts, "is precisely the kind of constitutional clause that the Necessary & Proper power was designed for, to permit Congress to add specificity to the process."

The assertion that a Vice President, whose own reelection was soundly rejected by a greater than 7 million vote margin, can ignore the will of the electorate and declare himself the winner amounts to a betrayal of the Oath every attorney takes to "support the Constitution of the United States". That frivolous assertion, of itself, warrants harsh discipline, perhaps including disbarment.

UPDATE, 1/2/21: Yesterday, U.S. District Court Judge Jeremy D. Kernodle, a Trump appointee, issued an Order dismissing the Gohmert lawsuit on the grounds that the Court lacked subject matter jurisdiction because "neither Congressman Gohmert nor the Nominee Electors have standing."

UPDATE 1/3/21: By way of a one-paragraph, Per Curiam Decision, a three-judge panel of the U.S. 5th Circuit Court of Appeal summarily denied Gohmert's appeal from Judge Kernodle's decision.

UPDATE 1/4/21: In the case filed by the Thomas More Society, Wisconsin Voter Alliance v. Pence, U.S. District Court Judge James E. Boasberg, an Obama appointee, issued a scathing 7-page Memorandum Opinion [PDF] explaining why the court was denying the plaintiffs' motion for a preliminary injunction, (emphasis added).

To say that Plaintiffs' 116-page Complaint, replete with 310 footnotes, is prolix would be an understatement. After explicitly disclaiming any theory of fraud [record citation], Plaintiffs spend scores of pages cataloguing every conceivable discrepancy or irregularity in the 2020 vote in the five relevant states, already debunked or not, most of which they describe as a species of fraud.

After describing "the legal errors underpinning this action" as "manifold", Judge Boasberg began by noting: "Plaintiffs have not demonstrated 'the irreducible minimum of standing' [Appellate Citation]." He described their claim to have been disenfranchised as "plainly not true. Their votes have been counted and their electors certified pursuant to state-authorized procedures."

The Court not only derides Plaintiffs failure to establish subject matter jurisdiction, but also felt Plaintiffs failed to establish how the Court could exercise personal jurisdiction over some of the named Defendants, like the Leader ofd the Wisconsin State Senate.

The Court went on to describe Plaintiffs' "central contention as flat-out wrong."

The Society attorneys cite a single sentence from Art. II of the U.S. Constitution --- "Each State shall appoint, in such Manner as the Legislature thereof, may direct, a Number of Electors..."

"Plaintiffs," the Court observed, "somehow interpret this straightforward passage to mean that state legislatures alone must certify Presidential votes and Presidential Electors....As a result, state statutes that delegate the certification to the Secretary of State or Governor or anyone else is invalid."

Because of their tortured and erroneous reading of that simple sentence, the Court observes, "Plaintiffs readily acknowledge that their position also means that the Supreme Court's decisions in Bush v. Gore [citation] (2000) and Texas v Pennsylvania [Citation] (Dec. 11, 2020) 'are in constitutional error'."

That admission means that neither the D.C. District Court nor the D.C. Circuit Court of Appeal, which lack the power to overturn a Supreme Court decision, could grant either the injunctive or declaratory relief sought by the 116-page complaint that Elias previously described as "really dumb".

Noting that Plaintiffs failed to serve Party Defendants, Judge Boasberg observed:

Their failure to make any effort to serve or formally notify any Defendant --- even after a reminder by the Court in its Minute Order --- renders it difficult to believe that the suit is seriously meant. Courts are not instruments through which parties engage in such gamesmanship or political gestures. As a result, at the conclusion of this litigation, this Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs' counsel.

So, with this latest decision, Trump and friends are now one insignificant win and 61 losses in post-election "legal" cases.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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