The Court Order Approving Sanctions Against Sidney Powell Shows How Hastily She Assembled Her Kraken
A federal judge in Michigan yesterday ordered sanctions against Sidney Powell, Lin Wood, and seven other pro-Trump attorneys who were involved in a lawsuit that sought to overturn the presidential election results in that state. U.S. District Judge Linda Parker, who dismissed that lawsuit on December 7, ordered Powell et al. to pay the legal expenses of the defendants and all but one intervenor. She also is requiring the nine attorneys to complete at least 12 hours of continuing legal education and “referring the matter for investigation and possible suspension or disbarment” to the “appropriate disciplinary authority” in each jurisdiction where they practice law.
When Powell et al. painted a picture of systematic election fraud that supposedly denied Donald Trump his rightful victory in Michigan, Parker concludes in a 110-page opinion, they filed their claims too late, made frivolous legal arguments, maintained the lawsuit long after it was clear that no remedy they sought was possible, and presented purported evidence without inquiring into its reliability or relevance. “This lawsuit represents a historic and profound abuse of the judicial process,” Parker writes. “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.”
Powell was publicly alleging rampant election fraud even before the polls closed. But she waited until 11:48 p.m. on the night before Thanksgiving, more than three weeks after Election Day, to file her lawsuit.
“Plaintiffs’ attorneys waited until after votes were tallied to file this lawsuit, even though the record suggests that—well in advance of Election Day—they knew or should have known about the things of which they complained,” Parker writes. “This game of wait-and-see shows that counsel planned to challenge the legitimacy of the election if and only if Former President Trump lost. And if that happened, they would help foster a predetermined narrative making election fraud the culprit. These things—separately, but especially collectively—evince bad faith and improper purpose in bringing this suit.”
Parker says Powell and the other lawyers should have known their claims had no chance of succeeding. “At the inception of this lawsuit, all of Plaintiffs’ claims were barred by the doctrines of mootness, laches, and standing, as well as Eleventh Amendment immunity,” she writes. “Plaintiffs’ attorneys did not provide a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law to render their claims ripe or timely, to grant them standing, or to avoid Eleventh Amendment immunity. The same can be said for Plaintiffs’ claims under the Elections and Electors, Equal Protection, and Due Process Clauses, and the alleged violations of the Michigan Election Code.”
In short, Parker says, the plaintiffs did not cite any plausible legal basis for the main remedy they sought: decertification of Michigan’s election results. That failure, she concludes, violated the Federal Rules of Civil Procedure—specifically, Rule 11(b), which requires that lawyers’ make a “reasonable” effort to ensure that their “claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.”
Powell et al. did not withdraw their lawsuit until January 14, more than five weeks after they said it would be moot and a month after Michigan’s electors cast their votes. “By failing to voluntarily dismiss this lawsuit on the date Plaintiffs’ counsel acknowledged it would be moot and thereby necessitating the filing of motions to dismiss,” Parker says, “Plaintiffs’ attorneys unreasonably and vexatiously multiplied the proceedings,” thereby violating 28 USC 1927.
Parker also concludes that Powell et al. violated Rule 11(b) by failing to conduct “an inquiry reasonable under the circumstances” into the evidence they presented, which consisted largely of affidavits lifted from unsuccessful prior lawsuits. Attorneys are supposed to make an effort to ensure that their “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”
These examples illustrate how reckless Powell and her collaborators were with the hundreds of pages they submitted to back up their claims—evidence that Powell likened to a “kraken” and a “fire hose.”
The Military Intelligence Analyst Who Wasn’t
Joshua Merritt, an affiant presented as a “U.S. Military Intelligence expert” and “a former electronic intelligence analyst with 305th Military Intelligence,” had never completed training in military intelligence—a fact that The Washington Post revealed on December 11. “Even after learning that Merritt never completed any intelligence analyst training program with the 305th Military Intelligence Battalion,” Parker notes, “Plaintiffs’ counsel remained silent as to this fact.”
During the six-hour July 12 hearing at which Parker considered the arguments for sanctions against Powell et al., attorney Howard Kleinhendler argued that Merritt’s “expertise” was based not on his purported training as a military intelligence analyst but on “his years and years of experience in cyber security as a confidential informant working for the United States Government.” Parker did not buy that. “Clearly this is dishonest,” she says, since “it was precisely Merritt’s experience as ‘an electronic intelligence analyst under 305th Military Intelligence’ that Plaintiffs’ attorneys presented to convince the Court and the world that he is a reliable expert.”
Kleinhendler also claimed he “had no reason to doubt” the erroneous identification of Merritt until after the case was dismissed on January 14—a month after the Washington Post story. “This is also dishonest,” Parker says. When she
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