Appeals court to look at sanctions imposed on Kraken lawyers

A team of pro-Donald Trump lawyers and their attorneys argued before an appeals court panel Thursday that they should not have to pay sanctions imposed by a federal judge for a lawsuit that sought to overturn the 2020 presidential election in Michigan.

In a hearing that lasted more than two hours, a three-judge panel from the U.S. Court of Appeals for the 6th Circuit focused their questions on whether some of the sanctioned attorneys should be penalized based on their level of involvement in the case and the circumstances that permit lawyers to file lawsuits alleging election fraud without facing the possibility of sanctions.

The lawsuit, filed in 2020, leveled false allegations of election fraud and misconduct and relied on flawed affidavits. In rulings issued last year, U.S. District Judge Linda Parker ordered the nine attorneys involved in the lawsuit to pay more than $175,000 in legal fees incurred by Detroit and others that defended against the lawsuit, complete a dozen hours of continuing legal education and have the matter referred to attorney disciplinary boards that could pursue investigations to disbar the attorneys.

Parker wrote in her opinion that "this case was never about fraud — it was about undermining the people’s faith in our democracy and debasing the judicial process to do so." All nine sanctioned attorneys appeared to comply with the legal coursework requirement but have appealed the payments Parker ordered.

Sidney Powell led the legal effort in Michigan to challenge the 2020 election results with a lawsuit filed after the state's elections panel had certified the outcome of the presidential race in the battleground state. David Fink, an attorney representing Detroit which intervened as a defendant in the case, said in his closing argument that those who brought the lawsuit couldn’t have won the relief they requested because they sought it too late.

"So the question becomes… what they were really seeking?" he said.

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"They couldn't get what they asked for. They couldn't achieve anything because they filed it so late. But what they could get was they could send a message to the world that something was wrong in Detroit. That something was wrong in Michigan and that this election was stolen." Fink said the lawsuit aimed to serve an "extra-judicial" purpose.

That may not make Powell's lawsuit unique, said Judge Danny Boggs, nominated to the bench by Republican President Ronald Reagan.

"When you say something is for an improper purpose because it asks for stuff that you’re not going to get, isn't there an awful lot of litigation throughout history that does that?" he asked.

"They have First Amendment rights, but not to tell lies in court," Fink responded. "They were sanctioned because they asserted in bad faith claims that had not colorable basis in law or fact."

Powell said the lawsuit's goal was "to secure the voting machines to enable us to do a forensic examination of them so we get the evidence to put this to bed one way or the other." In closing, Powell said "there's no telling what would have happened if we’d actually gotten access to the machines so this could have all been resolved for the good of the country."

"I mean, I had actually hoped that we could get enough information to prove that what we were asserting was not true," she said. She said of her fraud theory it's a "terrifying thought" to contemplate that "the American people are not really electing our leaders like we think we are."

Judge Helene White, appointed to the court by Republican President George W. Bush, seemed to take issue with the timing of the lawsuit's filing, pressing Powell on why the lawsuit was not filed earlier and instead came weeks after the Nov. 3 election. "Three weeks is a long time when you’re dealing with an election," White said.

Earlier in the hearing, Judge Raymond Kethledge, another Bush appointee, began a series of questions about when lawyers could pursue election fraud cases after Assistant Attorney General Heather Meingast called the lawsuit at issue "unprecedented" for asking the court to "declare by judicial fiat that another candidate won."

Kethledge asked Meingast about a case where there may be "indisputable evidence of fraud." "Are the courts powerless to act in that instance?" he asked.

"No, I do not think they’re powerless," she said.

He suggested that Meingast didn't provide a meaningful distinction between why the election fraud case brought by Powell was legally frivolous. "It’s OK, I mean there are other reasons why the court said this was frivolous, but I’m not hearing a defense of this particular legal frivolous determination by the court," he said.

During an exchange with Fink later in the hearing, Kethledge indicated that the appeals court decision would hinge, in part, on whether the panel agrees with Parker’s conclusion that the lawsuit was brought in bad faith.

"We have to agree with that finding," he said. "Part of that is did she substantiate that finding that general with... enough specific proof."

Before adjourning the hearing, he said the case would be submitted and carefully considered.

Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work at bit.ly/freepRFA. Contact her at chendrickson@freepress.com or 313-296-5743. Follow her on Twitter @clarajanehen.

This article originally appeared on Detroit Free Press: Appeals court to consider sanctions against Kraken lawyers