Texas’s own senior GOP senator, John Cornyn, said, “I frankly struggle to understand the legal theory” behind it. Jeb Bush responded by saying there was no theory and predicted that the court would reject it out of hand. Sen. Ben Sasse (R-Neb.) even went so far Thursday as to suggest it was a “PR stunt rather than a lawsuit” and that Paxton might be merely seeking a Trump pardon for his personal legal problems.
The thing is, though, our legal system has mechanisms to combat frivolous lawsuits. Broadly speaking, there is supposed to be a price to pay for flooding the zone with the kind of dubious claims and alleged “PR stunts” that have characterized the Trump team’s legal strategy.
But will the lawyers involved face such penalties? Legal ethics experts are skeptical, even as they suggest they might be warranted.
The federal law at issue is Federal Rule of Civil Procedure 11. Known as Rule 11, it requires that those making cases in court must not be doing so “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” It also requires that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument.”
The American Bar Association also prohibits bringing or defending a lawsuit “unless there is a basis in law and fact for doing so.”
A lawsuit based on bogus claims that is brought for partisan political purposes or to curry favor with a president, as Sasse suggested this is, would certainly risk violating such rules. In addition, a judge punishing a lawyer for such frivolous claims, if viewing such claims as proliferating, could send a message to other lawyers considering similar lawsuits — which is the explicit purpose of Rule 11.
Harvard University law professor Mark Tushnet argues that there are violations of Rule 11 in the Texas lawsuit and others filed on behalf of Trump, given that several of them have included false allegations, affidavits from witnesses whose claims judges said didn’t stand up and inaccurate descriptions of those affidavits.
But he notes that the bar for a judge deeming a lawsuit frivolous or in violation of Rule 11 is generally high and that politics could factor into any decisions to sanction the lawyers involved.
“Judges haven’t yet issued sanctions because, again in my view, they are sensitive to the fact that in the current context, doing so would immediately subject them to criticism for acting in a partisan manner,” Tushnet said. “A Trump-appointed judge might be more immune from that criticism than others, though not entirely immune.”
Fordham University’s Bruce Green agreed that it was unlikely the lawyers would be punished. He noted that the defendants in the cases — the state and local elections officials — have declined to press for such sanctions. Judges could still issue sanctions to the lawyers of their own volition, but defendants could certainly press the issue, and they haven’t.
Green suggested that was because they are merely happy with their continued resounding and unequivocal victories, which could speak for themselves. What’s more, he noted that proving a lawyer purposefully brought a frivolous case — or that it was based on false claims — is difficult.
“Some lawyers who have observed the proceedings have filed disciplinary complaints against one or more of the lawyers who pressed the plaintiffs’ woefully inadequate election challenges,” Green noted. “But absent a referral by the judges overseeing the litigation, and absent proof that the plaintiffs’ lawyers knowingly used false evidence, the disciplinary authorities are unlikely to get involved.”
New York University’s Stephen Gillers agreed that such sanctions might be warranted and are possible, but he called them “unlikely.”
“Why the judges who toss these cases don’t do that is hard to understand,” he said.
But Gillers also noted that sanctions could also come from outside the courts. Rep. Bill Pascrell Jr. (D-N.J.), for instance, has filed complaints in five states seeking to strip Trump lawyer Rudolph W. Giuliani and 22 lawyers affiliated with Trump’s effort of their law licenses. Pascrell has accused the lawyers of frivolous lawsuits and “conduct involving dishonesty, fraud, deceit or misrepresentation.”
“Given the complaints filed by Rep. Pascrell and others, the risk to the lawyers has been increasing daily,” Gillers said. “For all we know, discipline investigations may already be occurring but are not yet public. In early stages, they are confidential.”
But that’s part of the point. The purpose of Rule 11 is as a deterrent. Indeed, it says that any punishment “must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” A critic of Trump’s lawsuits would argue that, without such sanction — or at least the looming threat of it — lawyers like Paxton will have no compunction about throwing legal arguments against the wall and hoping they stick.
But given that 17 fellow Republican attorneys general from states across the country have joined in Paxton’s lawsuit, there doesn’t seem to be much deterrence right now. Indeed, Trump’s legal team and its universe of allies have thus far been notable for how far outside the mainstream they’ve been. Giuliani has been tilting at windmills throughout the Trump era, and both Sidney Powell and L. Lin Wood have espoused a number of wild conspiracy theories. The lawyer on the Texas lawsuit, John Eastman, most recently made news for his much-derided claim that Sen. Kamala D. Harris (D-Calif.) might not be eligible to be vice president despite being born in this country.
Other Trump-affiliated lawyers have also been notably absent from the effort. Several firms and lawyers who initially represented Trump withdrew, though it’s not clear that was because of their concerns about what they were taking part in.
Politics almost certainly play into this on both ends. Judges or others tasked with policing Rule 11 will very logically worry about creating a situation in which Trump and his allies use such decisions to suggest persecution by the judiciary or the “deep state,” which Trump has frequently alleged. Why go beyond striking down a case when it might only inflame the situation?
But merely striking down cases doesn’t thus far seem to have deterred Trump and his allies from bringing more far-flung ones to the courts. And polls show the vast majority of Republicans believe or are inclined to believe that the election was stolen from Trump, despite his teams’ brutally bad record in actual courts of law.
At some point, you could certainly make an argument that merely striking the cases down — even with strong language — has failed to prevent even more frivolous cases from being brought to the courts. Perhaps the defendants think this will all blow over eventually, and they don’t have to go down that road. Perhaps the judges believe the same.
But if they truly believe these cases are as frivolous as their arguments and rulings suggest — and these truly are “PR stunts,” as Sasse suggests — absolving the lawyers involved of blame would only seem to encourage others to press forward without regard for the rule of law.