Former Trump campaign lawyer Sidney Powell and five other attorneys have accused a Michigan federal judge of discrimination in an appeal to the Sixth Circuit of what they describe as career-ending sanctions stemming from their involvement in a lawsuit challenging the 2020 presidential election results in the Great Lakes State.
U.S. District Judge Linda V. Parker, an Obama appointee, allegedly allowed her own views and opinions to influence the sanctions order she hit Powell and eight other attorneys with in August 2021 in an Eastern District of Michigan case, according to a reply brief filed with the Sixth Circuit on Monday. The attorneys have asked the appellate court to reverse the order and issue recalls on related disciplinary referrals Judge Parker sent out for investigations into possible disbarment or suspension.
Powell and the other sanctioned attorneys rebuked Judge Parker for allegedly violating their First Amendment rights to petition and discriminating against them based on their and their clients’ political viewpoints.
“Far from according the greater leeway that has always been applied in fast-moving election litigation with deep First Amendment and public policy litigations, the district judge adopted a nit-picky, censorious approach, venting her revulsion at what she viewed as an unjustified assault on our political process,” Powell and the attorneys said.
Powell and the other attorneys asserted in their Monday brief that they were not rehashing the election lawsuit, but fighting to maintain a legal system where attorneys don’t have to risk their careers to challenge the established order.
“They accept the loss, though they do not agree with it,” Powell and the attorneys said. “But to then punish them for the trying; to nit-pick their witness affidavits for inferences the district judge thought implausible; to disparage the authorities on which they relied because they don’t have a case directly on point; and to hit them with career-ending sanctions because the judge was offended by ‘the narrative that our election processes are rigged and our democratic institutions cannot be trusted,’ strikes a hard blow at our system of advocacy.”
Judge Parker issued a blistering opinion accompanying her August 2021 sanctions order. She said Powell and fellow attorneys had attempted to deceive the court through unfounded claims with no supporting evidence and that their actions represented a “historic and profound abuse of judicial process.”
She ordered the attorneys to take at least six hours of continuing legal education courses on pleading standards and at least six more hours on election law as part of their punishment, and, in December 2021, issued a $175,000 monetary penalty. The judge also referred her sanctions order to the Michigan Attorney Grievance Commission and other disciplinary authorities for investigations into possible disbarment or suspension.
Judge Parker has since stayed her monetary punishment pending its appeal to the Sixth Circuit.
The attorneys in February attempted to stay a deadline related to the completion of their CLE courses, but the Sixth Circuit rejected the bid, saying their effort came too late.
Powell and the five other attorneys argued in their Monday brief that Judge Parker sanctioned them for actions lawyers take in court cases across the country daily: They invited the court to draw inferences from documented facts and submitted affidavits and argued for extensions of precedent to cover novel situations.
“If lawyers were sanctioned whenever they can’t find authority directly on point, few advocates – and zero good ones – would escape discipline,” the attorneys said. “Arguing by analogy from existing authority, seeking an extension to a new fact situation, even arguing for reconsideration of established authority, is the advocate’s art and duty.”
David Fink of Fink Bressack, who represents Detroit in this case, told Law360 that Powell and her fellow attorneys cannot escape the fact that they violated court rules and used their bar privileges to “fan the flames” of the Jan. 6, 2021, insurrection at the U.S. Capitol.
“Nothing they say in their reply briefs can change the fact that they abused their bar privileges when they presented demonstrably false claims, improperly multiplied the proceedings and misrepresented the law to the court,” Fink said.
Michigan and Detroit have previously filed briefs with the Sixth Circuit urging the court to affirm Judge Parker’s sanctions order.
The state argued in a June brief that Judge Parker acted clearly within her discretion to punish Powell and her fellow attorneys for filing suit that “offered nothing more than conspiracy theories unaccompanied by any actual evidence of fraud.” The timing of the case, which was filed three weeks after the election on Nov. 25, and the claims alleged in it support a finding that it was filed based on improper motives, the state added.
Detroit added in its own June brief that Powell and her fellow attorneys could’ve used the three weeks between the 2020 election and the filing of their suit to vet their claims and the purported evidence of fraud.
“While plaintiffs’ counsel bided their time, other lawsuits challenging the outcome of the 2020 election were filed and the specious claims in those cases were rejected,” the city argued. “But plaintiffs’ counsel did not use that time to vet their claims.”
Instead, they filed their lawsuit without any new evidence of fraud and relying on affidavits that had previously been rejected by other courts, the city said.
In addition to Powell, attorneys Gregory J. Rohl, Brandon Johnson, Howard Kleinhendler, Julia Haller and Scott Hagerstrom are appealing the sanctions order.
Counsel for the attorneys and a representative for Michigan didn’t immediately respond to requests for comment Tuesday.
The attorneys are represented by Howard Kleinhendler and Sidney Powell.
Michigan is represented by Heather S. Meingast and Erik A. Grill of the Michigan Attorney General’s Office.
Detroit is represented by David H. Fink and Nathan J. Fink of Fink Bressack.