Last week, the Trump campaign dropped its final lawsuit contesting the results of the presidential election in Michigan. Lawyers representing Trump had alleged “irregularities” among millions of mail-in ballots received in Wayne County, Mich., which contains the city of Detroit.
The lawsuit had no chance of success. The legal pleadings contained no evidence of the massive voter fraud alleged by the Trump campaign, nor did it lay out a path to uncover any such evidence. The entire lawsuit was merely designed to delay certification of Michigan’s election results.
It didn’t work. The Wayne County Board of Canvassers initially deadlocked on the question of whether to certify the results, when the two Republicans on the committee openly refused to count the votes of people living in predominately Black precincts. But, after an intense public backlash, the Republicans reversed course and certified the results.
That didn’t stop the Trump campaign from declaring victory and saying the quiet part out loud: It had dropped the lawsuit because it had succeeded in its goal of delaying certification of the election results. Rudolph Giuliani, who appears to be leading this coup d’imbécile, spoke for the campaign even though he did not personally represent it in the Michigan case. He said the goal of Trump’s lawsuit had been “to prevent the Wayne County election from being certified prematurely before residents can be sure that all legal votes were counted and all illegal votes were not counted.”
This statement is effectively an acknowledgment of a violation of legal ethics that is sanctionable under Rule 11 of the Federal Rules of Civil Procedure. It is an admission that the team’s legal arguments in court were not designed to achieve victory but only to delay the completion of the process entrusted to the Board of Canvassers. Having achieved that mere delay, by a matter of hours (and not an actual injunction), the legal team withdrew its lawsuit and claimed “victory.” It shows that the lawsuit was a ploy and not a valid legal argument.
Lawyers are not supposed to bring lawsuits that are merely designed to cause a delay in the normal operation of law. They’re not supposed to bring lawsuits that are frivolous and have no legal rationale. The Federal Rules anticipate the possibility of an attorney doing exactly what Giuliani has admitted the Trump campaign is doing and authorize judges to punish attorneys who do it.
Rule 11(b)(1) makes transparently clear that the conduct of the lawyer’s representing the Trump campaign is sanctionable:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
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(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
In addition, I could easily make the case that the campaign’s Michigan filing violates Rule 11(b) 2 and 3 and 4 as well.
(2) the 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;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Rule 11 applies only to the named attorneys in a case. A lawyer can get up at a press conference and say all kinds of stuff without being brought up on sanctions. But once a lawyer signs their name on an official pleading, they become officers of that court with an ethical duty to respect the legal process.
In the Michigan case, Mark F. Hearne, who apparently goes by the nickname “Thor,” is the named attorney representing the Trump campaign. He should be sanctioned under the Federal Rules.
If Giuliani had stayed on the sidelines, merely shouting invectives from the Just for Men aisle or whatever landscaping storefront he plans to hold his next press conference from, he could have escaped Rule 11 sanctions. But, after the law firm Porter Wright withdrew from a frivolous Pennsylvania lawsuit, Giuliani stepped in as a named attorney for Trump.
Giuliani inserted himself into the federal case Donald J. Trump for President, Inc. v. Boockvar. In that suit, the Trump campaign asked the court to throw away around 700,000 mail-in ballots in Pennsylvania. The campaign gave no cogent legal reason for such an extraordinary ruling. Giuliani’s unhinged performance in court will be taught in future trial advocacy clinics as a case study in failure.
Over the weekend, US District Judge Matthew Brann dismissed the case with a blistering opinion. The judge wrote:
One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens. That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.
Again, this is a point-and-click violation of Rule 11. U.C. Hastings Law professor James Wagstaffe has written that Rule 11 creates a duty for lawyers to certify that their lawsuits are factually and legally meritorious. “Wishful thinking doesn’t count.”
The Trump campaign has failed to assert any facts that support their contention that there was massive voter fraud during the election, nor has it come up with any meritorious legal theory that justifies the summary dismissal of hundreds of thousands of votes. No court, to my knowledge, has ever simply thrown away 100,000 votes after an election, much less the 700,000 that Giuliani and Trump have been asking for.
Trump’s attorneys are making frivolous legal arguments, unsupported by facts, and they know it. One of the other named attorneys in the Pennsylvania case is Marc Scaringi. After news outlets finally called the election for Joe Biden on November 7, Scaringi went on his own radio show and said, “At the end of the day, in my view, the litigation will not work.… It will not reverse this election.” Yet he continued to represent Trump in his frivolous lawsuit.
All of Trump’s lawyers know or should know they are bringing frivolous lawsuits with no chance of success. As of this writing, they, along with other Republican-aligned institutions or private actors, have brought 36 lawsuits challenging the standing of the election. At least 25 have been dismissed by the court or settled or withdrawn. Trump’s lawyers are wasting the court’s time and using the mere existence of frivolous, unwinnable lawsuits to cast doubt on the legitimacy of the election.
None of this is okay. We don’t just have to throw up our hands and wait for people like Scaringi, Hearne, and Rudolph freaking Giuliani to grow a conscience and stop flooding the zone with legal inanity. Rule 11 is there, specifically, to put a stop to these kinds of shenanigans.
Courts can impose Rule 11 sanctions on their own initiative, or opposing counsel (in this case, the Biden team or lawyers for the Democratic National Committee) could file a motion asking the court to impose sanctions.
Why haven’t they? I’m sure the judges don’t want to appear partisan, and the Biden team doesn’t want to give these frivolous lawsuits any additional coverage, but something has to be done to stop the madness. Trump attorneys must be punished, or else they will keep wasting the court’s and the country’s time.
As usual, only Black people seem to be willing to fight these Trump goons where they are. The NAACP Legal Defense Fund is representing a group of Black voters claiming that the Trump campaign’s efforts to overturn the election are a violation of the Voting Rights Act. They ask the court to stop the campaign from engaging in this behavior.
I’m sick of everybody else treating Trump and his bad-faith sycophants as if they are babies throwing a series of tantrums. Stop infantilizing them. Stop treating them like misbehaving children who need a time-out. These are grown adults who need to be punished for their violations of laws and codes of ethical conduct.
Rule 11 is there to stop the frivolous litigation brought by the Trump legal team. Use it.