Detroit Motions Court To Punish Sidney Powell For ‘Kraken’ Lawsuit

The city of Detroit is asking a federal judge to impose sanctions against attorney Sidney Powell and other lawyers involved in filing the infamous “Kraken” lawsuit, which the city argues was “frivolous” and was filed for the “improper” purpose of “undermining people’s faith in the democratic process.”

Key Facts

Powell, who the Trump campaign cut ties with in late November, has been involved in filing dozens of the over 50 failed legal attempts to overturn the election’s results—most notably lawsuits she dubbed the “Kraken,” because she believed they were based on overwhelming evidence of fraud, that have been embraced by the QAnon conspiracy theory community.

Filed in states including Wisconsin, Arizona and Georgia, the lawsuits hinge on debunked claims and crackpot witness testimony that the election’s voting machine system was manipulated in favor of President-elect Joe Biden, claims that Michigan’s U.S. District Judge Linda Parker batted away earlier this month, saying: “The will of the people have spoken.”

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Now, a lawyer for the city of Detroit is asking Judge Parker to sanction the “Kraken” team with fines, a sweeping ban from practicing in the Eastern District of Michigan and a referral to the state’s bar for grievance proceedings.

In the motion—which will be filed after a three-week window during which Powell can opt to withdraw her offending litigation (Powell told Forbes over email that she will not do so)—Detroit lawyer David Fink argues that the pro-Trump team violated standards of legal professional conduct under federal Rule 11, which requires that lawyers must not make cases in court “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

“These are not run-of-the-mill lawsuits and these are not minor factual and legal errors,” said Fink in a phone interview with Forbes, “I don’t think lawyers who practice with such disregard for the law and the facts should be allowed to practice.”

If the sanctions motion moves forward, Powell could be forced to post a $100,000 bond before filing any more appeals of the “Kraken” lawsuit in addition to the sanctions mentioned in the motion, but may also be exposed to other potential avenues of discipline which could include a review by the state bar even if the motion is denied, said University of Miami School of Law professor Jan Jacobowitz.

While it’s typically uncommon for lawyers to be sanctioned under what Bruce Green, who directs Fordham Law School’s Louis Stein Center for Law and Ethics, describes as a “vague standard,” multiple legal ethics experts told Forbes that Detroit could succeed in punishing the “Kraken” team, though it depends entirely on the judge’s determination.

“There seems to be a pretty compelling argument for punishing the lawyers for filing a frivolous lawsuit for improper purposes,” said Green, emphasizing, however, that “there are countervailing considerations” like limited precedent, the politicization of the legal battle and the fear of discouraging future election-law challenges that may have merit.

Crucial Quote

“It is true that discipline or Rule 11-type sanctions for filing frivolous complaints are unusual but they do happen. The rule is not toothless. There is a bar. These lawyers appear to have crossed it,” said leading ethics expert Stephen Gillers, a professor at New York University Law School, who added that the “notoriety” of Powell and the campaign lawyers’ litigation efforts could make it “especially likely” that a court or disciplinary authority will impose sanctions because of the “obvious harm these lawyers have done to the administration of justice and the rule of law.”


Chief Critic

Harvard Law School Professor Mark Tushnet was less convinced, arguing that the notoriety of the defendants may prevent the court from wanting to get involved. “I think it extremely unlikely that this motion will lead the judge to consider seriously the issue of sanctions,” said Tushnet, echoing reservations expressed by Green. “Partly that’s because I believe that the judge, like most of us, will just want to put this whole episode behind us, rather than prolonging it. And this motion in particular has the feel of just a follow-up act in the ‘political theater.’”


Tangent

University of Richmond Williams Chair in Law Carl Tobias said that Judge Parker’s harsh dismissal of the “Kraken” case may be an indicator that she believes it to be “so weak, frivolous, lacking in legal support or abusive of the litigation process that it violated Rule 11 or other similar rules or US Code provisions,” but noted the potentially “chilling effect” of approving sanctions request like this.

Key Background

Though Detroit appears to be the first jurisdiction to pursue sanctions against the lawyers, their trail of failed lawsuits across the country has drawn criticism and calls for punishment from other parties. On Nov. 20, Rep. Bill Pascrell Jr. (D-N.J.) filed complaints with ethics boards in five states, calling for the investigation and disbarment of Trump’s personal attorney Rudy Giuliani and other members of the legal team. A group of over 1,500 attorneys buoyed these complaints earlier this month in a letter urging the American Bar Association to investigate the team’s conduct. These disciplinary complaints filed by bystanders are “likely to go nowhere,” said Green, explaining that disciplinary authorities will look to trial courts to address the problem: “Here, it’s a party asking the court to address the problem under the civil procedure rules that call on the court to sanction lawyers who make frivolous legal and factual arguments … It will be harder for the court to avoid deciding the sanctions motion.”




Leona Zoey

Leona Zoey

Leona Zoey writes about the Law, Innovation and Technology.