- After getting booted from President Donald Trump’s legal team, Sidney Powell has filed several lawsuits challenging the 2020 election results on her own.
- They’re premised on conspiracy theories that the 2020 election results have been manipulated and that Trump is the true winner of the presidential election.
- The legal system is grappling with these lawsuits, which challenge democracy based on falsehoods, Jan Jacobowitz, a legal ethics expert at Miami University, told Insider.
- The lawsuits include numerous typos and factual errors, which aren’t enough alone for disbarment or court sanctions, experts told Insider.
- But Powell also included plaintiffs who didn’t consent to be part of her lawsuits, and appeared to manipulate evidence filed to a judge. Those could pose bigger problems for her, ethics experts said.
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Sidney Powell has made a name for herself in recent weeks filing numerous lawsuits contending that the 2020 presidential election was a farce, often making outlandish and false claims.
The true winner of the election, she contends, was President Donald Trump.
Powell was kicked off of Trump’s own legal team in November after she floated conspiracy theories at a press conference with Rudy Giuliani and Jenna Ellis. Giuliani and Ellis remain on the campaign’s “Elite Strike Force,” which has so far won zero legal challenges against the election results.
Now, she is striking out on her own. Powell’s law firm has brought four lawsuits in Michigan, Arizona, Georgia, and Wisconsin.
The “Kraken” lawsuits, as she’s called them, all rehash the same argument: That voting machines switched votes from Trump to President-elect Joe Biden, and that the states should declare Trump the true winner of their electoral votes.
The lawsuits have a lot of flaws. All of them include numerous typos and basic factual errors in the complaints and exhibits attached to them. Some of them list plaintiffs who say they didn’t consent to be members of the cases. A major figure in the dubious QAnon conspiracy theory movement is cited as a cybersecurity expert to bolster her claims. And she may have even altered an exhibit to boost some of her arguments.
Critics have called for Giuliani to lose his law license over the Trump campaign’s election lawsuits. And since she left Giuliani’s side, Powell’s own lawsuits have made considerably more outré claims than the Trump campaign’s.
Powell’s actions in court and in the public sphere could put her at risk of sanctions. Disbarment is the harshest sanction she could receive, but it’s also possible that one of the judges can refer her to receive a lesser sanction, like a reprimand, legal ethics experts told Insider. Lawyers for the city of Detroit have asked the judge to issue sanctions against Powell for her failed lawsuit in Michigan.
Stephen Gillers, a legal ethics professor at New York University law school, said Powell and Giuliani are “playing with fire” with their lawsuits.
“A lawyer is a gatekeeper for what gets to the court. Her job is, in lay terms, to filter out garbage so it does not take up court time,” Gillers told Insider. “Court time is a limited public resource. Garbage claims tax that resource.”
Powell didn’t respond to Insider’s request for comment for this story.
The lawsuits stress the limits of the court system
Disbarment – taking away someone’s ability to practice law – is a rare sanction.
State bar associations and judges are more likely to mete out lesser punishment, like suspension or a public reprimand. Since Powell doesn’t have a long record of misconduct, disbarment at this stage in her career is unlikely, Gillers said.
The sloppiness of the lawsuits themselves aren’t enough for discipline, Gillers said, although they will likely harm her credibility with judges.
But Powell should be worried about whether the conspiracy theories in her lawsuits skirt ethics rules, legal ethics experts told Insider.
The election lawsuits serve as a stress test for the court system, according to Jan Jacobowitz, the director of the Professional Responsibility and Ethics Program at the University of Miami School of Law.
Just as American society has grappled with the proliferation of false news, misinformation, and conspiracy theories for the past few years, these lawsuits demonstrate them now being injected into the legal system in a high-profile way.
That the lawsuits are themselves about the democratic process makes them even harder for judges to address. In their rulings, they’ve not only pointed out the lack of merits in each case, but reaffirmed the value of the votes that Powell and Trump are seeking to invalidate.
“The right to vote is among the most sacred rights of our democracy and, in turn, uniquely defines us as Americans,” Judge Linda Parker wrote in her opinion dismissing Powell’s election challenge in Michigan.
“I think the system as a whole is struggling with that issue because of the challenge to our democratic process, our checks and balances. The fundamentals of our democracy are at stake here,” Jacobowitz told Insider. “And I feel like perhaps the courts are playing their role and they don’t want to create a secondary side show and then get into a debate about what was political speech or litigation privilege, and what was an outright frivolous and dishonest lawsuit without any basis. And that’s a mess.”
Judges have so far expressed extreme skepticism about the merits of the dozens of election lawsuits filed so far. But the court system is also a foundational part of the United States as a democratic, open society, and a forum for determining the truth.
“While we pride ourselves on being an open society with First Amendment rights, these lawsuits that appear to be crossing the line are being tolerated, and then dismissed, almost in the hopes of allowing the system to work and not further stirring the pot,” Jacobowitz said.
Powell has mixed law and politics before. She wrote a book, called “Licensed to Lie”, accusing the Justice Department of gross prosecutorial misconduct. She rehashed many of the same arguments while acting as a lawyer defending Michael Flynn, Trump’s former national security advisor who withdrew his guilty plea for lying to the FBI. Flynn was ultimately pardoned by Trump in November amid ongoing litigation.
When it comes to the election lawsuits, Jacobowitz noted, judges have opted to issue harsh opinion orders rather than mete out punishment.
“Whether there’s a reasonable basis, in fact and in law for what she’s doing, it seems that the courts are dismissing all these lawsuits, not just hers, and expressing their displeasure in the language of their opinions rather than sanctioning the lawyers or referring them to the bar,” Jacobowitz said.
Attorneys aren’t required to have a rock-solid, definitely winnable case whenever they file a lawsuit. But they are required to conduct a preliminary investigation before going to court to ensure that a claim is credible, Gillers said. If Powell didn’t do that, she could be at risk of sanctions.
“Powell, like Giuliani, could be at risk of a court or disciplinary committee sanction for filing frivolous claims and for alleging facts for which they had no basis,” Gillers said. “Whether or not they succumbed to those risks requires a deep dive into each filing.
The attorney sanction process typically begins once a judge refers a lawyer to the state bar. So far, no judges have publicly taken that step yet. Bar counsels and judges may want to keep away from the cases out of concern they could make the oversight system appear partisan, according to Law360.
“Any of the cases that are frivolous from day one – they’re not permissible under the legal ethics rules,” Jacobowitz said. “But that doesn’t mean that the state bar or a judge is necessarily going to do anything about it.”
Taking a client without permission and manipulating evidence are also bad
Judges and bar counsels may be wary of issuing court sanctions on the merits – or lack thereof – of Powell’s lawsuits. But there are other problems they could look at.
Powell’s lawsuits are arguing on the basis of voters and election candidates, who claim that a rigged election violates their constitutional rights. Powell doesn’t have the ability to sue on her own behalf.
But on two occasions, people listed as plaintiffs in Powell’s lawsuits said they didn’t want to have anything to do with them.
“If the plaintiff or plaintiffs named have not agreed to sue, there is no case,” Gillers said. “A lawyer needs a client.”
In one lawsuit in Georgia, she included Cobb County Republican Party Chair Jason Shepherd as a plaintiff. He told Atlanta Journal-Constitution reporter Greg Bluestein that he hadn’t consented to joining it because he didn’t have enough information about the lawsuit, though later said the county’s Republican leadership voted to join it anyway.
In another lawsuit in Wisconsin, failed GOP House candidate Derrick Van Orden is listed as a plaintiff. He said on Twitter he was “not involved in the lawsuit seeking to overturn the election in Wisconsin.”
Powell re-filed the lawsuit two days later, scrubbing Orden’s name from the legal documents. She still maintains William Feehan, a Wisconsin voter and designated Republican party presidential elector, as a plaintiff in the lawsuit.
All of that could be a problem.
“Purporting to represent a person in court without authorization is serious and can support court sanctions or discipline,” Gillers said.
Powell’s Georgia lawsuit also contended that Dominion – the voting machine company at the center of her conspiracy theories involving dead Venezuelan President Hugo Chávez – has an undated certification form with the state.
Reuters’s Brad Heath pointed out that the date is simply cropped out in her lawsuit exhibit.
—Brad Heath (@bradheath) December 1, 2020
Judge Timothy Batten, who is overseeing the case, said in court Monday that he would strike down the case. It’s not yet clear if his ruling will address that particular exhibit.
Jacobowitz said that, if Powell deliberately misrepresented evidence in her lawsuit, it would “definitely” be sanctionable.
“That violates so many rules, that when you add that to the filing on behalf of someone who didn’t give their consent and everything else, it’s really an abomination,” she said. “And it’s embarrassing to the legal profession to have somebody with that kind of spotlight and national attention practicing law in that manner.”
“Filing a lawsuit that has no basis in law and in fact is not permissible,” she continued. “Being dishonest is not permissible. Misrepresenting is not permissible. Filing on behalf of a client who didn’t consent is actionable.”
Powell’s lawsuits may also beget more lawsuits and public statements. She’s made numerous false claims about Dominion and Smartmatic, another company that manufactures voting machines. Both have been forced to go on a publicity campaign dispelling her conspiracy theories. The companies may have a defamation case on their hands, according to Andrew Koppelman, a First Amendment expert at Northwestern University, told Insider.
Whether Powell will experience anything worse than losing lawsuits remains to be seen.
“Many people believe the line has been crossed. But the result has been that the lawsuits are being dismissed pretty quickly by the court,” Jacobowitz said. “And then the ultimate question is, when does somebody get penalized beyond having cases dismissed?