An Atlanta-area prosecutor has launched a criminal investigation into whether pressure that President Donald Trump and his allies put on state officials amounted to an illegal scheme to overturn the results of the election.
And defamation lawsuits have been filed against Trump’s allies — the start of what could be a flood of civil litigation related to false claims that the election was rigged and to the subsequent riot at the U.S. Capitol on Jan. 6.
Although Trump was acquitted by the Senate on a charge that his rhetoric incited the deadly Capitol siege, public officials and private companies are pursuing a multi-front legal effort to hold him and his allies accountable in other ways. The actions target the former president and numerous others — including elected officials, media pundits and lawyers — who indulged and echoed his falsehoods that President Biden did not win the election.House managers argue former president Trump incited an insurrection in a dramatic and swift Senate impeachment trial. (The Washington Post)
The goal, according to lawyers and others supportive of such efforts, is to mete out some form of punishment for those who helped undermine confidence in the election results and fueled the Jan. 6 attack on the Capitol. But even more, they said, they hope to discourage other public officials from rerunning Trump’s strategy of attempting to overturn an election result by sowing doubt about the legitimacy of the vote.
“There has to be some consequence for telling these lies — because when you lie to people, they take action based on what they think is true,” said Philadelphia City Commissioner Al Schmidt, a Republican who received threats after false allegations of fraud in the counting of the city’s votes. “Because it’s such a dangerous new thing that occurred, there has to be some reconciliation. Moving on isn’t enough.”
A federal judge in D.C. late Friday referred one lawyer for possible disciplinary action. Still, it’s not yet clear how far courts will go in pursuing sanctions against lawyers who may have believed in their own conspiracy theories, or whether prosecutors will ultimately bring criminal charges related to the election. The civil litigation could linger for years.
And one side effect of the endeavors: They could provide new forums for Trump and his allies to showcase their false claims about the vote in 2020.
Indeed, former New York mayor Rudolph W. Giuliani, who served as Trump’s lead post-election attorney and who is the target of several of the lawsuits that have been filed, said in a text message that he sees the court actions as “an opportunity” to defend his claims. Or, as he wrote, “it will give me a chance to get the truth past the Iron Curtain of Big Tech and Most Media censorship.”
A spokesman for Trump did not respond to a request for comment.
The most serious ongoing legal actions involve criminal inquiries. More than 225 people have been charged with various crimes directly related to the storming of the Capitol on Jan. 6. Justice Department officials have said they do not expect to file criminal charges against Trump or others who gave incendiary speeches in Washington that day before the violence, but they also said the case is complex and the investigation ongoing.
But even without charges against the former president, several lawyers representing alleged rioters have signaled they plan to argue that their clients were merely following what they thought were Trump’s directions that day — meaning there could be lengthy legal wrangling over Trump’s culpability.
Meanwhile, one local prosecutor so far is directly examining whether Trump and his allies broke state laws when they sought to overturn the results in Georgia.
Fulton County District Attorney Fani T. Willis sent a letter this month to various state officials indicating that her office is examining a variety of criminal charges related to “attempts to influence” the 2020 election.
In December, Trump called Georgia’s top state elections investigator and asked the person to “find the fraud.” Then, in a recorded phone call in January, Trump pressured Georgia’s secretary of state to “find” enough votes to reverse Biden’s win in the state.
Another front could open up in Wisconsin, where a recount confirmed Biden’s victory.
Last week, lawyers representing the state council of the Service Employees International Union sent a letter to Milwaukee County District Attorney John Chisholm requesting a criminal investigation into whether laws were broken when 10 would-be Wisconsin electors sympathetic to Trump met behind closed doors at the state Capitol on Dec. 14 and tried to appoint themselves as the state’s representatives to the electoral college.
The group signed illegitimate certificates of election and sent the fake documents to federal and state officials proclaiming that Trump had won the state’s electoral votes.
Their actions came as Wisconsin’s governor on the same day convened Biden’s electors in an open ceremony elsewhere in the Capitol, as prescribed by state law, to formally give the state’s votes to Biden and Vice President Harris.
The union identified six Wisconsin laws that it says the would-be Trump electors may have broken, including prohibitions on forgery and falsely assuming to act as a public officer.
“Some of this is about trying to bring bad actors to account. But the bigger part is trying to make sure we never go through something like this again,” said Jeffrey A. Mandell, a lawyer representing the union. “We have seen an intensification from election to election of how far people are willing to push these issues. And we need it to stop.”
The Milwaukee County District Attorney’s Office did not respond to a request for comment, nor did a spokesman for the Wisconsin Republican Party, which was involved with organizing the Trump elector effort. Party Chairman Andrew Hitt was one of the 10 people purporting to be Trump electors.
Meanwhile, a variety of groups and individuals who say they were harmed by lies told about the election are pursuing lawsuits.
On Tuesday, Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee, sued Trump, Giuliani and members of two extremist groups, arguing that their rhetoric caused the Jan. 6 riot in violation of an 1871 law that bars violent interference in the performance of Congress’s duties. Thompson is being represented by the NAACP, which said other members of Congress are expected to join.
Trump spokesman Jason Miller has rejected the effort, saying in a statement that “the facts are irrefutable” that Trump “did not incite or conspire to incite any violence at the Capitol on Jan. 6th.”
Separately, two election technology companies are pursuing multibillion-dollar defamation suits against various Trump allies, alleging that they repeatedly told lies about the companies’ products in the weeks leading up to Jan. 6.
Dominion Voting Systems, one of the two firms, has filed twin $1.3 billion defamation suits against Giuliani and another lawyer, Sidney Powell, who together promoted false claims that the company’s voting machines were manipulated to swing the election to Biden.
Dominion Voting lawyers have said they plan imminently to file similar action against Mike Lindell, a leading Trump supporter who is the chief executive of the company MyPillow, and the lawyers have sent letters warning of potential litigation to dozens of others, including the Trump campaign.
Lindell has said he would welcome a lawsuit that might result in discovery and allow him to press his allegations against Dominion Voting.
Giuliani has accused the company of using the suit “to wipe out and censor the exercise of free speech” and has likewise said the lawsuit will give him an opportunity to litigate his assertions about the election.
The company has claimed in court documents that Powell “evaded” service of its suit, forcing it to pursue her across state lines. In an email, her attorney Howard Kleinhendler called that claim “false,” indicating that she had been traveling frequently for work and was facing security threats but had not been avoiding the lawsuit.
A second company, Smartmatic, which has said that during the November election it operated in only one U.S. county, a jurisdiction in California, has filed a $2.7 billion lawsuit against Fox News and several of its prominent commentators, as well Giuliani and Powell. Smartmatic argues that the commentators and lawyers used the network to propagate wild lies, including falsely claiming the company had been founded by Venezuelans close to former leader Hugo Chávez.
Kleinhendler called the lawsuits “empty, self-serving publicity stunts and pathetic attempts at obscene and unfounded damages claims” and said Powell looked forward to defending herself in court.
The lawsuits are a turnabout for Trump and his allies, who themselves filed more than 60 suits after the election, challenging the results in various states. They lost all but one in Pennsylvania that affected only a handful of ballots.
Judges in some of those suits are considering requests to sanction the pro-Trump lawyers, either through monetary penalties or by referring them for disciplinary action in the states where they hold their law licenses.
Federal rules prohibit lawyers from filing frivolous suits or from using litigation for improper purposes such as to harass or delay. Lawyers also are not allowed to lie in court.
The purpose of the rules, said Stephen Gillers, a professor at New York University School of Law and an expert in legal ethics, is to discourage bad practices: “Lawyers should not bring garbage complaints to the court and take up valuable court time. Judicial time is limited — it’s a valuable resource.”
Detroit was the first formally to request sanctions, filing a motion in December asking U.S. District Judge Linda Parker to assess monetary fees against Powell, attorney Lin Wood and several others involved in a case that had challenged Michigan’s presidential election results.
In ruling against the Trump allies at one stage of the litigation, Parker had called the suit “stunning in its scope and breathtaking in its reach” and an attempt to “disenfranchise the votes of the more than 5.5 million Michigan citizens who, with dignity, hope, and a promise of a voice, participated in the 2020 General Election.”
In January, Detroit also asked Parker to initiate a process that could prevent the lawyers from being able to work in Michigan courts. Michigan Gov. Gretchen Whitmer (D) and Secretary of State Jocelyn Benson (D) also have asked the judge to sanction the lawyers. The two officials, along with Michigan Attorney General Dana Nessel (D), have written letters to state bar associations requesting grievance proceedings against the lawyers.
“Attorneys who use their license to fuel the fires of insurrection have no right to run and hide when their battle is lost,” said David Fink, a Detroit-based lawyer representing the city in the case. “They chose to misrepresent the facts to the court and participated in a scheme to persuade millions of Americans that this was not a free, fair and open election. They have to be held accountable for what they’ve done.”
In a filing this month, attorney Stefanie Lambert Junttila, representing the pro-Trump lawyers, called the request for sanctions “baseless,” “procedurally improper” and “an attempt to create a dangerous precedent that could dissuade future civil rights and voting rights plaintiffs from bringing their disputes to court.” (She also argued that Powell should not be sanctioned because she had not actually signed documents that were filed in the case under her name.)
Kleinhendler, also a lawyer for Powell, said there was “no credible basis” that any ethics complaint could stand against her and said she had practiced “with the highest professional legal integrity” throughout her career, which included a stint as a federal prosecutor in Texas.
Similar motions for sanctions could be forthcoming in other states where Trump and his allies challenged election results in court.
In Wisconsin, Gov. Tony Evers (D) said in a statement to The Washington Post that state officials will “absolutely” be seeking attorney fees from and sanctions for the Trump lawyers. “These lawsuits had no basis in the law or reality, and they were an attack on our democracy. There needs to be repercussions for this reckless, dangerous behavior,” he said.
No sanction motions have so far been filed in Pennsylvania, where Giuliani appeared in court to argue Trump’s case, but a spokeswoman for Attorney General Josh Shapiro (D) said: “We have made it clear there will be accountability for those who filed and defended those meritless claims regarding the Pennsylvania election.”
“We saw the horrific consequences that ensued on January 6th as a result of these baseless attacks designed to undermine faith in our election process,” she added.
In D.C., Judge James E. Boasberg of the U.S. District Court initiated possible sanctions without any formal request. Late Friday, he formally referred Minneapolis-based lawyer Erick G. Kaardal to an attorney grievance committee for an investigation into Kaardal’s conduct over a last-ditch lawsuit filed in December seeking to stop Biden from taking office.
The suit, in which Kaardal was representing a conservative group called the Amistad Project, was filed against Vice President Mike Pence, both houses of Congress, the leaders of five states and the electoral college — a body that does not exist as a permanent entity.
In his order, Boasberg identified a variety of problems with Kaardal’s suit and added that the lawyer had sought a “staggering” outcome — to invalidate a presidential election. “When any counsel seeks to target processes at the heart of our democracy, the Committee may well conclude they are required to act with far more diligence and good faith than existed here.”
A lawyer for Kaardal had argued this month against the move, writing that Kaardal had acted in good faith and that disciplinary action would have a “chilling effect” on future litigants who assert similarly good-faith arguments in challenging existing law.
Separately, Wood, who worked closely with Powell, has said that he has been alerted by the State Bar of Georgia that it is considering disciplinary action against him — which could result in the suspension or revocation of his law license. An official of the Georgia bar association declined to comment, citing the confidentiality of the process, as did an official with the bar association in Texas, where Powell is licensed.
“The false attacks are propaganda intended to smear my good name,” Wood said in an emailed statement. “The enemy wants me to stop speaking truth. I will not be stopped.”
There also is an effort to seek sanctions in New York, where Gillers, the NYU law school professor, helped draft a complaint asking state courts to investigate Giuliani’s conduct, potentially to revoke his license to practice law in the state.
Gillers noted that New York state has an especially stringent rule that prohibits lawyers from engaging in “conduct that adversely reflects on the lawyer’s fitness as a lawyer.” Although the disciplinary process can take three to four years to resolve, he said the court has the option to suspend a lawyer’s license on an interim basis if that lawyer is deemed a threat to the public interest. He said he thinks Giuliani could be a candidate for that kind of drastic action.
“He spent months as the titular head of the Trump legal challenges, bringing useless cases and publicly claiming that the election was fraudulent, thereby creating confusion,” he said. “I believe he knew it — or should have known it — and I think that behavior, across many months and after many losses both in court and in public opinion, adversely reflects on his fitness as a lawyer.”
The Washington post
