No
Self-Respecting Lawyer Should Touch Trump’s Election-Fraud Claims
The
president may not have to worry about keeping a job after January 20, 2021, but
the attorneys doing his bidding at the moment certainly do.
NOVEMBER 11, 2020
Partner at the law office of Mark S. Zaid, P.C.
Attorney
Every
year, incoming first-year law students are told a simple truth: You can sue
anyone at any time for anything, anywhere.
That does
not mean you will win. And it does not mean doing so is always consistent with
a lawyer’s ethical and professional obligations. Some of the lawyers at the
firms handling the litigation work for President Donald Trump’s campaign or
related Republican Party organizations are now raising concerns internally about
the legitimacy and purpose of the legal claims they are currently being asked
to advance. These concerns have merit: Lawyers have ongoing obligations to
adhere to the ethical requirements of the state bars through which they are
licensed, as well as the relevant rules of the court(s) before which they are
practicing. Trump may not have to worry about keeping a job after January 20,
2021, but the lawyers doing his bidding at the moment certainly do.
The wave of quixotic
lawsuits flying out of Trump’s legal team is stretching the boundaries of
anything remotely resembling a coherent and evidence-based approach to
litigation. In the mere eight days since Election Day, the Trump campaign has
filed at least 10 different lawsuits in at least five different states
(Michigan, Pennsylvania, Arizona, Georgia, and Nevada). Some of these are
run-of-the-mill lawsuits fighting over minor issues, but several directly
allege fraud, and a few include documentation claiming to prove the existence
of that fraud.
To date,
not a single one of these lawsuits alleging fraud has gone anywhere. One
lawsuit relied on what the court politely suggested was “vague hearsay.” Another suggested that the use
of Sharpies on ballots had made those ballots invalid. That lawsuit was dropped before the court
could even rule on it. A third claimed election officials were not properly
ensuring mail-in ballots that arrived after a state-mandated deadline were
being excluded from the ballot tabulation. A state court judge threw that lawsuit out after
finding there was “no evidence” indicating the allegations were correct.
Other
allegations claim that individuals who are deceased or no longer living in the
relevant state nonetheless voted in the 2020 election. Even cursory
investigative reporting into these claims has found that the former is largely
due to clerical errors with respect to birth
dates, and the latter is due in no small part to military personnel lawfully claiming
residency in a state distinct from that in which they are currently stationed
under military orders.
The coup
de grace is a recently filed lawsuit seeking to throw out the entirety of the
mail-in-ballot count in Pennsylvania, dubiously claiming with little to no
evidence that verification safeguards were insufficiently applied to mail-in
ballots and that the entire system was ultimately unconstitutional. Virtually
every objective legal analyst has deemed that lawsuit to be dead on arrival. And that is a good indication
that any lawyer worth his or her salt should have stayed far, far away from it.
Rule 3.1 of the American Bar Association’s
Model Rules of Professional Conduct—upon which most state bars rely at least in
part—stipulates that a lawyer shall not bring an action unless a basis exists
in law and fact for doing so. This rule implies that lawyers must do due
diligence to inform themselves of the facts of the case and reasonably
determine that a good-faith argument can be made in defense of the client’s
legal claim. Rule 11(b) of the Federal Rules of Civil
Procedure—many of which are designed to serve as “gatekeepers” against
frivolous lawsuits—requires lawyers to ensure that their arguments are not
frivolous, and that factual contentions either have or are reasonably likely to
have evidentiary support. Although the courts do not often exercise their
discretion to enforce it, Rule 11(c) provides judges with the authority to
impose sanctions against lawyers who have violated Rule 11(b).
These due-diligence
obligations are of particular importance in the cases Trump and his team are
now litigating. Rule 9(b) of the Federal Rules identifies
certain “special matters” that must be pled with greater specificity and are thus
subject to what courts call “heightened scrutiny.” One of these matters is
fraud: “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake”
(italics added). More than one court has held that the “heightened scrutiny”
Rule 9(b) requires also applies to claims of election fraud.
But what
does “with particularity” actually mean? In simple terms, a plaintiff alleging
fraud must describe the “who, what, when, where, and how” of the alleged fraud.
Vague allegations of misconduct—especially those based on hearsay (governed
under Federal Rule of Evidence 802)—will often meet
their end against the edge of Rule 9(b)’s blade. And it looks like the Trump
team’s lawsuits are not faring any better.
We can
assume that Trump’s lawyers are not incompetent, which leads to the question:
If they know these lawsuits are unlikely to stick, why are they filing them?
The ethical dilemma confronting these lawyers is greater than merely making
their billable-hours quota and continuing their advancement in their firms. The
deeper they venture down the Trump conspiracy rabbit hole, armed with nothing
more than futile lawsuits premised on flimsy evidentiary or legal bases, the
more their professional reputations and law licenses are at risk.
This was
a stinging lesson for Trump’s former personal attorney Michael Cohen, who went
to jail for committing campaign-finance felonies to protect his client in the
days leading up to the 2016 election. Cohen’s current predicament, and the
seemingly incremental steps he took to arrive there, serves as a perfect
example of a lawyer crossing the line and not knowing when to refuse a client’s
demands. Even the most zealous advocate for a client should not violate ethical
or legal obligations merely to advance a client’s interests.
Every
individual has the right to hire the lawyer of his preference and choosing,
subject to financial and ethical limitations. No individual has the right to
require his lawyer to risk her professional career to assuage that person’s
bruised ego. Indeed, lawyers are ethically bound to terminate
representation of a client if continued representation would result in the
lawyer violating the rules of professional conduct (such as Rule 3.1) or other
laws.
Recognizing
how close you can get to the line before you topple over it is something that
each of the members of the Trump campaign’s outside legal team should be
carefully considering these days. Their continued ability to be licensed
attorneys might ultimately depend on it.
This story
is part of the project “The Battle for the Constitution,” in partnership
with the National Constitution Center.
We want
to hear what you think about this article. Submit
a letter to the editor or write to letters@theatlantic.com.
BRADLEY P.
MOSS is a partner at the Washington, D.C., law office of
Mark S. Zaid, P.C., where he has represented countless individuals (including
whistleblowers) serving within the intelligence community. He is also the
deputy executive director of the James Madison Project, through which he has
represented media outlets such as Politico, Gawker, Daily
Caller, and The Daily Beast in FOIA lawsuits against the
Bush, Obama, and Trump administrations.
JOANNE
MOLINARO is a partner and trial lawyer in Chicago.
