by Elise J. Bean, Wayne State University, [This article first appeared in The Conversation, republished with permission]

Over the past four years, U.S. courts and state bar associations have taken action to protect the integrity of the U.S. judicial system by penalizing attorneys who filed meritless lawsuits claiming – without evidence – that the 2020 presidential election results were invalid.

Despite aggressive litigation by attorneys denying wrongdoing, over time the U.S. legal community has exercised the oversight needed to hold most of them accountable for misusing U.S. courts.

Most lawsuits challenging the 2020 presidential election results were filed in federal courts. Federal judges not only dismissed the claims for lack of evidence, but some also penalized the attorneys who filed them.

Judge Linda Parker of the U.S. District Court for the Eastern District of Michigan acted first, ruling in August 2021 that a lawsuit filed by nine lawyers was “a historic and profound abuse of the judicial process.” In a 110-page opinion, she wrote that the abuses included:

“proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings.”

“Print, television, and social media” are where the attorneys could have made their “protestations” and “conjecture,” Parker wrote. But “such expressions are neither permitted nor welcomed in a court of law.”

The judge imposed three penalties on the attorneys: US$175,000 in defendant legal costs; 12 hours of mandatory instruction on pleading standards and election law; and referrals to the Michigan Attorney Grievance Commission and their home state disciplinary authorities for possible suspension or disbarment.

Appeals to the 6th Circuit and Supreme Court to reverse the sanctions failed. After three years of litigation, the Michigan-ordered penalties still stand.

‘Fantastical’ claims

Courts in other states have taken similar action to hold accountable attorneys who filed abusive or frivolous lawsuits challenging presidential election results:

Colorado: A federal district court penalized two attorneys, Ernest Walker and Gary Fielder, for filing a complaint seeking $160 billion in damages from 19 defendants for alleged misconduct related to the 2020 presidential election. After finding its claims were “fantastical” and “filed in bad faith,” the court ordered Walker and Fielder to pay defendants’ attorney fees totaling $187,000. Appeals to the 10th Circuit and Supreme Court failed.

Arizona: A federal district court imposed similar sanctions on three attorneys – Andrew Parker, Kurt Olsen and Harvard professor Alan Dershowitz – who challenged the 2020 presidential election results in Arizona. The court found their complaint contained “false, misleading, and unsupported factual assertions” and “did not have an adequate factual or legal basis.” It ordered the attorneys to pay defendants’ attorney fees totaling $122,200. The attorneys have appealed.

Florida: One federal district court even confronted a 193-page lawsuit filed by Donald Trump in 2022, claiming 31 defendants disseminated false information about him to rig the 2016 presidential election. The court wrote: “This case should never have been brought. … No reasonable lawyer would have filed it.” The court ordered Trump and his lead counsel, Alina Habba, to pay defendants’ attorney fees totaling $938,000. Both are appealing.

These cases create a solid body of precedent for inflicting penalties on attorneys who file abusive pleadings challenging election results.

Suspension and disbarment

In addition to courts penalizing attorneys for inappropriate filings, bar association disciplinary authorities in multiple states have initiated proceedings to suspend or disbar those attorneys from practicing law in their jurisdictions. Despite lengthy procedures involving multiple steps met by aggressive litigation in opposition, those disciplinary proceedings are nearing final action.

In New York, the key disciplinary authority found “uncontroverted evidence” that Rudy Giuliani, who served as legal counsel to President Trump and his campaign, “communicated demonstrably false and misleading statements to courts, lawmakers and the public.” It ordered his immediate suspension from the practice of law in New York pending further proceedings. The D.C. Bar Association, relying on the New York action and without conducting its own fact-finding, did the same in the District of Columbia.

While no further proceedings occurred in New York to permanently disbar Giuliani, the D.C. Bar’s disciplinary authority issued a 2024 report recommending his disbarment in that jurisdiction..

Focused on his actions in Pennsylvania, the 2024 report states that he violated the Pennsylvania Rules of Professional Responsibility by filing a lawsuit seeking “to disenfranchise hundreds of thousands of Pennsylvania voters without the slightest factual basis for doing so.” It concludes “disbarment is the only sanction that will protect the public, the courts, and the integrity of the legal profession, and deter other lawyers from launching similarly baseless claims.” The disbarment recommendation is now under review by the D.C. Bar’s final disciplinary authority.

In similar proceedings against another attorney, the D.C. Bar’s disciplinary authority issued a preliminary finding that Jeffrey Clark, former acting head of the Justice Department’s Civil Division, also violated D.C. ethics rules and should be sanctioned. The move was in response to Clark’s alleged efforts to help Trump overturn the 2020 election results.

Comparable disciplinary actions have taken place in other states.

The California Bar’s disciplinary authority recommended disbarment of John Eastman, a law professor who filed abusive pleadings and engaged in other unethical conduct while representing President Trump and the Trump campaign.

When the Georgia State Bar’s Disciplinary Board asked Trump campaign attorney Lin Wood to undergo a mental health evaluation, he sued to prevent it. A federal district court dismissed his suit, and his appeal failed. In 2023, Wood announced his permanent retirement from the practice of law.

The Michigan Attorney Disciplinary Board denied multiple motions by the attorneys who filed abusive suits there to dismiss pending disbarment proceedings.

Not all state disciplinary authorities prevailed. Sidney Powell, who represented Trump and his campaign, won dismissal of ethics charges brought against her in Texas. However, she still faces possible disbarment in Michigan and pled guilty to criminal charges in Georgia relating to the 2020 presidential election there.

Judicial system integrity

Many attorneys who filed abusive pleadings challenging the 2020 presidential election have paid a price, incurring litigation costs, judicial condemnation and reputational damage. Some no longer practice law.

The legal community’s tough oversight should make attorneys think twice before misusing U.S. courts, but still unknown is whether past disciplinary efforts will deter any potential misconduct following the 2024 presidential election.

What is known is that the integrity of the U.S. judicial system is only as strong as its commitment to the facts.

Elise J. Bean, Director of the Washington Office of the Levin Center for Oversight and Democracy, Wayne State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.