Pro-Trump lawyers deserve sanctions for 'whole raft' of baseless election claims, 6th Circuit says

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AP Photo Sidney Powell

Lawyer Sidney Powell at a news conference at the Republican National Committee on lawsuits regarding the outcome of the 2020 presidential election on Nov. 19, 2020. The 6th U.S. Circuit Court of Appeals at Cincinnati has said Powell and others associated with a lawsuit made a “whole raft” of baseless claims about “hostile foreign governments” accessing voting machines made by Dominion Voting Systems. Photo by Tom Williams/CQ Roll Call via the Associated Press.

Lawyers who support former President Donald Trump deserve sanctions for their lawsuit alleging that Michigan officials “fraudulently manipulat[ed] the vote” in November 2020 through a “wide-ranging interstate—and international—collaboration” to ensure a win for now-President Joe Biden, a federal appeals court ruled Friday.

The 6th U.S. Circuit Court of Appeals at Cincinnati said Sidney Powell and others associated with the suit made a “whole raft” of baseless claims about “hostile foreign governments” accessing voting machines made by Dominion Voting Systems.

But the suit did include credible allegations about election workers in Detroit intimidating and mistreating Republican election challengers, the 6th Circuit said. And some of the fees owed were wrongly calculated. As a result, the 6th Circuit trimmed more than $20,000 from about $153,000 in attorney fees that seven of the lawyers owe jointly and severally to the city of Detroit and about $2,300 from the nearly $22,000 in fees that six lawyers are responsible paying to the state of Michigan.

The 6th Circuit detailed numerous problems with the suit, which included the fact that its allegations concerned a different kind of voting system than the one used in the state. Michigan voters marked paper ballots that were fed into voting machines—a system that the lawyers’ expert said was the only “defensible” method for voting systems.

The 6th Circuit questioned several experts and the lawyers’ characterization of their conclusions, including:

  • A claim that Dominion was founded to help former Venezuelan President Hugo Chavez manipulate Venezuelan elections was based on a “Dominion Whistleblower Report” said to be written by an unnamed “adult of sound mine.” (The appeals court notes “mine,” not “mind,” was the word used in the suit.) But the report actually said a different voting machine company was formed with that purpose, and it said nothing about Dominion, the 6th Circuit said.
  • The suit relied on an expert described as a “former electronic intelligence analyst with 305th Military Intelligence with experience gathering SAM missile system electronic intelligence.” But the expert turned out to be a Dallas IT consultant who dropped out of an entry-level intelligence course after seven months of training. And a report that he wrote did not concern the integrity of voting machines, as the suit alleged; it instead concerned the integrity of the voting system’s public website.
  • Another expert used to support hacking allegations said his background included “advanced converged telecom, highly advanced semiconductor materials, hospitality, commercial real estate development & operation,” as well as running “Europe’s highest grossing Tex-Mex restaurant.” Those cited qualifications, the 6th Circuit said, made his asserted knowledge of foreign interference with voting machines “questionable on its face.”

In addition, the IT consultant said Dominion machines in four Michigan counties resulted in “289,866 illegal votes”—even though Dominion machines weren’t even used in two of those counties. And his claims assumed that the counties used a ballot marking system nowhere used in Michigan.

  • The suit relied on allegations that Michigan voting results were statistically anomalous or impossible, said to be made by “Matt Braynard using the National Change Address Database.” But his opinion “came in the form of four tweets, each 280 characters or less,” the appeals court said. Braynard purportedly conducted a “multistate phone survey data of 248 Michigan voters,” leading yet another expert to make the unreliable assertion that the results showed that “approximately 30,000 Michigan mail-in ballots were lost, and approximately 30,000 more were fraudulently recorded.”
  • An expert’s opinion about “unexpected” gains by Biden in some large metropolitan counties led the lawyers to wrongly assert that 190,000 likely fraudulent votes were cast.

The appeals court found no problems, however, in the lawyers’ reliance on the opinions of four other experts who looked at voting patterns and the percentage of absentee ballots cast by Democrats.

According to the appeals court, a federal judge wrongly found that the lawyers’ entire suit was sanctionable, when some parts of the complaint were not deserving of sanctions. In addition, the federal judge wrongly found that the lawyers filed the suit to use the judicial process to frame a public narrative.

“To the contrary,” the 6th Circuit said, “parties and their attorneys are free to use litigation ‘as a vehicle for effective political expression and association.’ … And contesting election results is not itself an improper purpose for litigation.”

The lawyers who signed the complaint were Powell, Scott Hagerstrom and Gregory Rohl. Lawyers listed as “of counsel” on the suit were Emily Newman, Julia Haller, Brandon Johnson, Lin Wood and Howard Kleinhendler. Stephanie Junttila was hired to file an appeal after an injunction request was denied. The district judge had found that all nine lawyers were jointly and severally responsible for the attorney fees.

On appeal, Wood, Newman and Junttila that argued their participation in the case was too minimal to be sanctionable. The other lawyers argued their that conduct didn’t merit sanctions.

The appeals court agreed about minimal participation by Newman and Junttila and reversed the sanctions against them.

But the 6th Circuit kept the sanction against Wood as to the Detroit defendants, noting that he claimed in a Delaware court filing that he represented the Michigan plaintiffs, and that he tweeted about the case. In addition, Powell said she asked Wood’s permission to put his name on the case, and Rohl said Wood “spearheaded” the suit. But the state defendants didn’t seek sanctions against Wood, so the appeals court said he wasn’t liable for that sanction.

In upholding sanctions against Powell and the other five lawyers, the appeals court said the defendants in the suit gave the lawyers a chance to abandon their frivolous claims, but they did not take advantage of the opportunity. Because they didn’t, the 6th Circuit said, it was upholding many of the sanctions against them under Rule 11 of the Federal Rules of Civil Procedure.

Paul Stablein, an attorney for Wood, told Law360 that he and his client respect the appellate decision, but they “disagree with the court’s conclusion that Mr. Wood had anything to do with the drafting or filing of the complaint in Michigan.”

“Though he may have agreed with the other lawyers’ efforts, he did not have any knowledge of the specifics of the complaint and the facts it contained or relied upon,” Stablein told Law360.

Powell did not immediately respond to the ABA Journal’s request for comment submitted through her law firm’s contact form.

The case is King v. Wood.

The author of the opinion was Judge Raymond Kethledge, who was said to be on Trump’s U.S. Supreme Court short list.

Hat tip to Law360, which covered the suit.

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