A federal judge in Washington, DC, suggested on Monday that lawyers representing the Wisconsin Voters Alliance and other groups, which have backed efforts in several courts in line with President Donald Trump seeking to overturn President-elect Joe Biden’s win, could face professional discipline.
The group had asked the DC District Court to block the Electoral College vote and Congress from confirming Biden’s win. District Judge James Boasberg fully rejected their requests, calling it a “fundamental and obvious misreading of the Constitution” and “the undermining of a democratic election for President of the United States.”
Boasberg also wrote in a seven-page opinion that the case may not have been filed seriously from the beginning. He noted the group hadn’t properly notified its targets — which included Vice President Mike Pence — of the lawsuit, and had filed it in the wrong court.
“Courts are not instruments through which parties engage in such gamesmanship or symbolic political gestures,” Boasberg wrote.
“As a result, at the conclusion of this litigation,” he added, “the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.”
Erick Kaardal, a lawyer for the plaintiffs, did not respond to CNN’s requests for comment.
Trump and his allies have lost around 50 court cases they’ve brought since the election, with many seeking to push unfounded theories of possible fraud, throw out millions of legitimate votes and overturn Biden’s win so Trump can remain in office.
Though judges have sharply rejected the efforts, few have taken tangible steps to look into attorneys’ possible misfilings and mistakes in the suits and whether they’ve upheld their ethical obligations as lawyers.
Federal judges have the power to hold people who appear before them in contempt in extraordinary situations, and state bar associations also regulate licenses for practicing law.
Elaine Block, a lawyer specializing in legal ethics and an adjunct professor at the Georgetown Law Center, told CNN that “at some point when you’re facing judge after judge in court after court rejecting your arguments, it’s clear that your arguments have no basis and that’s the definition of what it means to have a frivolous lawsuit that has more or less no reasonable chance of success.”
Block called it surprising and disappointing that “people that should know the rules of professional conduct and the rules that determine whether a suit can go forward, that those people are just filing and willing to file and willing to stand behind one after another frivolous lawsuit.”
Tom Mason, a partner at Harris Wiltshire and Grannis in its legal ethics and malpractice group, emphasized that Boasberg floating potential professional discipline was far from a confirmation of wrongdoing.
“What this court is saying is, ‘I’m going to think about it, and what I’m going to think about is whether I issue an order to show cause, whether this thing should be referred to a committee for investigation,'” Mason said. “So that’s a number of steps between, from that statement to any determination that any of the lawyers have acted in any way inconsistent with their professional obligations.”
Mason continued, “People are entitled to explore the boundaries of the law in order to make new law, so not every effort that people think is novel or (without precedent) is something that’s sanctionable. Hopefully not, because the law is something that lives and breathes and moves around. We need people to push at the boundaries to see where the law should develop.”
Attorney Page Pate said that it was it was an uncommon response in a lawsuit for a judge to refer a lawyer for potential discipline. But DC district court rules allows judges who find a lawsuit frivolous — that the lawyers had no evidence to support it or had no solid legal theory behind it — to refer lawyers for sanctions from the court directly or the state bar where the lawyer is admitted, he said.
While a potentially frivolous lawsuit did not seem like it would lead to disbarment, Pate said, “you could certainly see sanctions below that such as, what we would call a public reprimand, where the state bar says, ‘You did something wrong, don’t do it again.’ And that reprimand would be a part of the lawyer’s public file and permanent file. But it’s all up to the bar committee.”
“That’s your license to make a living, and Trump’s going to be gone at some point probably sooner rather than later,” Pate continued. “And if the lawyer wants to continue to maintain his or her practice in a particular court, then you need to follow the court rules.”
Block added that “I imagine the threat of serious discipline would dissuade the lawyers from continuing,” but noted that “President Trump seems to have an outsize capacity to get what he wants and to influence the people who work for him, so I don’t know.”