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Killing the Kraken: Federal Judge Sanctions Trump’s Big Lie Lawyers

Court of appalls.
August 27, 2021
Killing the Kraken: Federal Judge Sanctions Trump’s Big Lie Lawyers
Trump's personal lawyer Rudy Giuliani holds a ballot envelope as he speaks during a press conference at the Republican National Committee headquarters in Washington, DC, on November 19, 2020. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

At long last, a federal court in Michigan this week ordered monetary sanctions against Donald Trump’s “Kraken” lawyers for their abuse of the court system for cynical political gain. The order concludes the last of four—yes, four—frivolous lawsuits in that state seeking to impugn the results of the 2020 presidential election favoring Joe Biden. Although these kinds of sanctions are relatively rare, the decision is a shot across the bow to the likes of Sidney Powell, Lin Wood, and any other peddlers of Trump’s Big Lie about the election who plan to tout their snake oil in the federal courts in future elections. It also means that other courts—including state courts, which have at their disposal equivalent sanctions rules designed to disincentivize unethical or sloppy lawyering—might follow suit regarding this particular group of lawyers.

The Federal Rules of Civil Procedure governing litigation in federal courts require attorneys to certify through their signatures that any filings in court have a good faith basis in fact and law, and that they are not being filed for an improper purpose. What’s more, the rules preclude a “blind ignorance” defense, specifically mandating that lawyers conduct reasonable inquiries into the facts and the law before filing papers. If attorneys violate this rule—known as Rule 11—they can be sanctioned with orders to pay the other side’s attorneys’ fees spent batting away baseless claims or to pay monetary penalties to the court. They can even be ordered to take a review course in legal ethics or to apologize in writing. Rule 11 gives judges significant leeway here; the goal is to deter bad behavior across the bar going forward.

The Kraken lawyers brazenly and repeatedly violated Rule 11 every which way and back.

Judge Linda Parker’s 110-page tome is already being circulated among law faculty colleagues as a textbook introductory lesson for our first-year law students, many of whom come to law school with the mistaken assumption—fueled by social media, television, and film—that a lawyer’s job is to singlemindedly win at all costs. To the contrary, the drafters of the federal rules—and Congress, which effectively blesses the rules—were well aware of the human penchant for mischief. Rule 11 is designed to stave off those worst instincts for the sanctity of the judicial system as a whole.

From her opening line, the judge does not mince words:

This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.

How did Wood, Powell, and their co-counsel do this? Parker explains: They “proffer[ed] claims not backed by law; . . . not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); . . . without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.” Here’s the kicker (italics are by the court): “And this case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.

Having clerked for a federal judge and appeared before them many times as an assistant United States attorney and in private practice, I can feel the outrage—bordering on pain—behind these emphasized words. Many fellow Americans feel it too, but for a federal judge whose duty to uphold the law derives from Article III of the Constitution, the stakes are existential.

Judge Parker ordered Team Kraken to “reimburse the State Defendants and the City [of Detroit] for the reasonable fees and costs incurred to defend this action.” What this means is that the cadre of government lawyers who toiled on the taxpayer dime to defend this garbage lawsuit can tally up the many hundreds of hours they spent on this action and send Lin Wood and Sidney Powell the bill. Given how spectacularly awful the plaintiffs’ lawyers were—“claim[ing] violations of Michigan election law without a thorough understanding of what the law requires”—the judge went even further and imposed “mandatory continuing legal education” on them. In other words, they’re off to remedial law school.

Perhaps most serious is the judge’s directive that the conduct “warrants a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted.” Rudy Giuliani suffered a similar fate with the suspension of his law license in two jurisdictions (so far)—New York and D.C.—over such shenanigans, and Michigan Gov. Gretchen Whitmer, Attorney General Dana Nessel, and Secretary of State Jocelyn Benson have already initiated grievances against these lawyers with Michigan bar authorities. In Arizona, 21 attorneys are facing an ethics complaint for going to court at the behest of Donald Trump and the Arizona Republican Party to thwart the 2020 election, as well. And Wood is the subject of an additional probe by the State Bar of Georgia.

As for the possibility of other court-ordered money penalties, thus far Powell and her colleagues are facing sanctions in a Wisconsin federal court, where Gov. Tony Evers is seeking over $100,000 in fees in connection with a Big Lie lawsuit they filed in that state. Powell and Giuliani are also mired in defamation lawsuits filed by Dominion Voting Systems and Smartmatic for their attacks on the integrity of the companies’ voting machines.

As I tell my students, courts, unlike politicians, tend to color within the lines not because they’re decidedly populated by more ethical human beings, but because the rules require them to. If judges violate those rules, they get slapped down on appeal. It’s a saving grace of our flailing American democracy that the judiciary still stands.

No doubt Judge Parker will face an ugly backlash. She should be lauded as an honorable public servant for hewing to her oath. Let’s hope other courts take note.

Correction: An earlier version of this article incorrectly stated that Pennsylvania suspended Giuliani’s law license.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins) and What You Need to Know About Voting—and Why (HarperCollins). Her latest book is How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Twitter: @kimwehle.