The U.S. Supreme Court has refused to rehear an appeal to undo sanctions against a handful of pro-Trump lawyers—including Sidney Powell—who filed a lawsuit challenging the results of the 2020 presidential election in Michigan.
The failed suit, brought as part of a string of “Kraken” lawsuits that Ms. Powell championed, sought emergency relief in the form of eliminating all mail-in ballots from being counted in the 2020 election, or disqualifying Michigan’s electoral college votes from being counted in the final tally.
It also called for Michigan Gov. Gretchen Whitmer to transmit certified election results that declared “President Donald Trump is the winner of the election.”
Ms. Powell has argued in court filings that her conduct was reasonable and that she had vetted her election fraud claims before filing the lawsuit.
‘Chilling Effect’ on Voter Fraud Litigation
In 2021, Judge Parker, a nominee of President Barack Obama, ruled that Ms. Powell waited too long to bring the lawsuit and said the voter fraud claims on which it was based were “nothing but speculation and conjecture.”Besides imposing a monetary penalty, the judge ordered that Ms. Powell and the others be referred to the bar associations in their respective states for disciplinary proceedings.
In June 2023, a panel for the U.S. Court of Appeals for the Sixth Circuit upheld the monetary and disciplinary sanctions against Ms. Powell and the other attorneys, but it reduced the monetary sanctions to roughly $150,000.
Further, they claimed that it “creates an unprecedented and impermissible chilling effect on zealous advocacy and the willingness of any counsel to accept controversial cases.”
The Sixth Circuit denied the rehearing request in August 2023.
“The petition raises important issues of procedural and substantive due process regarding sanctions and even more important issues of First Amendment rights and electoral integrity,” their November complaint reads.
‘Doomed to Repeat’ 2020 Election Issues?
In the petition, Ms. Powell and the others argued that the sanctions were improperly imposed under both Rule 11 of the Federal Rules of Civil Procedure and 28 U.S. Code Section 1927.In particular, Ms. Powell argued that the Section 1927 sanctions (counsel’s monetary liability to cover excessive costs if they “unreasonably and vexatiously” multiply the proceedings in a given case) would impede potential litigation of voter fraud cases in future elections.
“Under the circumstances, the Court should review the [Section] 1927 sanction and the related issue of justiciability under Article II of claims under the Elections and Electors Clauses,” Ms. Powell and the others wrote in the petition. “If we are doomed to repeat the 2020 election’s serial violations of those clauses in 2024, future plaintiffs should know at least that they can continue their case vis-a-vis 2026 and future elections.”
The March 18 petition also alleged that the Supreme Court’s failure to address the motion to expedite violated due process.
In particular, Ms. Powell argued in the supplemental brief that the Supreme Court decision to hear the case of FBI v. Fikre was relevant to her request for a rehearing because it introduced new rigor and focus to parsing defendants’ mootness evidence versus the mootness standard for declaring an appeal as moot.
“Viewed in that light, this case is not moot,” Ms. Powell argued in the supplemental brief.
“Under Fikre, this Court must reject the lower court’s unsupported finding that a claim under the Elections and Electors Clauses became moot when the Electoral College voted on December 14, 2020,” her brief states. “Under Fikre, that finding is unsupportable factually and legally.”
She argued that even though the Sixth Circuit didn’t see a basis for her lawsuit, “that is both irrelevant and wrong.” That lower court decision was wrong, she argued, because the plaintiffs were able to name Michigan state officers who allegedly violated federal laws in relation to the 2020 election. And it was irrelevant because of the new rigor and focus brought to the mootness analysis by the Fikre case that the Supreme Court has agreed to hear.
The Supreme Court did not accept this reasoning, however, and denied a rehearing.
The high court has turned down other requests from attorneys opposing court sanctions for lawsuits they filed challenging the results of the 2020 presidential election.
Since the 2020 election, several other lawyers who were either retained by President Trump or had promoted his claims of voter fraud have faced disbarment.
For example, Jenna Ellis was censured by the Colorado Bar for making what it claimed were false statements about the 2020 election. Former Trump attorney John Eastman, a law dean at Chapman University, is facing disbarment in California.
Former New York City Mayor Rudy Giuliani, a longtime Trump ally and lawyer, had his license suspended following the election.
Ms. Powell, who entered into a plea deal with prosecutors in Fulton County, Georgia, in a separate election-related case, is also facing disbarment.
