Last November, former Trump campaign lawyer Sidney Powell filed a federal lawsuit in Michigan that described “a massive election fraud” aimed at “illegally and fraudulently manipulating the vote count to manufacture an election of Joe Biden as President of the United States.” Powell’s evidence included an affidavit in which Russell Ramsland, a cybersecurity analyst and former Republican congressional candidate, claimed that voter turnout in Detroit was an impossible 139 percent and that turnout in North Muskegon was an even more improbable 782 percent, which he presented as clear signs of fraud. The actual figures were 51 percent and 78 percent, respectively.
Were Ramsland’s statements “lies,” as David Fink, an attorney representing the city of Detroit, described them during a hearing yesterday? Were they understandable errors that Powell and her colleagues presented in good faith? Or were the misrepresentations so egregious and readily refuted that they show the attorneys who relied on them failed to exercise common sense, let alone due diligence? These are the sort of questions that U.S. District Judge Linda Parker is confronting as she mulls sanctions against Powell and other pro-Trump lawyers who were involved in the Michigan case.
Detroit is asking Parker, the same judge who last December rejected Powell’s attempt to decertify Michigan’s presidential election results, to impose monetary penalties on her and her collaborators, order them to pay “all costs and attorney fees” incurred by the defendants, ban them from practicing law in the Eastern District of Michigan, refer them to the chief judge of the district “for initiation of disbarment proceedings,” and refer them for professional discipline in Michigan and their home states. In addition to arguing that Powell et al.’s lawsuit was “frivolous and legally deficient,” the city says the attorneys presented factual claims they either knew or should have known were false.
“In a case of this magnitude, intended to upend the election of the President of the United States, the Plaintiffs owed this Court the highest degree of due diligence before filing suit,” the city says in its motion for sanctions. “Instead, there are only two possibilities—these six Plaintiffs did not read the Complaint and the expert reports supporting it; or, they did read the Complaint and the faulty expert reports and did not care that false representations were being made to this Court. Either way, this case cries out for sanctions to deter this behavior in the future.”
Yesterday Parker seemed inclined to agree. “The court is concerned that these affidavits were submitted in bad faith,” she said. “The question is: Is there anything there on the face of these submissions that would give counsel pause?” The short answer: Yes, there is, including basic geographical errors, rumors passed off as fact, misunderstandings of election procedures, unverifiable reports of irregularities, and wild, easily debunked claims like Ramsland’s.
Even before yesterday’s hearing, we knew that Parker did not think much of the evidence that Powell had likened to a “Kraken” and a “fire hose.”
Powell claimed election machines in Michigan (and around the country) were rigged to give Biden a lead. But “the closest Plaintiffs get to alleging that election machines and software changed votes for President Trump to Vice President Biden in Wayne County,” Parker noted in December, “is an amalgamation of theories, conjecture, and speculation that such alterations were possible.”
Powell maintained that Democrats resorted to paper ballot fraud after their original, machine-based scheme failed to work as anticipated. Yet “the closest Plaintiffs get to alleging that physical ballots were altered” to favor Biden, Parker said, “is the following statement in an election challenger’s sworn affidavit: ‘I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates.’ But of course, ‘[a] belief is not evidence’ and falls far short of what is required to obtain any relief, much less the extraordinary relief Plaintiffs request.”
What about Powell’s reiteration of the complaint that Detroit election workers treated Republican poll challengers rudely and inappropriately? “Plaintiffs do not at all explain how the question of whether the treatment of election challengers complied with state law bears on the validity of votes, or otherwise establishes an equal protection claim,” Parker wrote.
Parker offered even stronger criticism yesterday. “I don’t think I’ve ever seen an affidavit that makes so many leaps,” Parker said about one tentacle of Powell’s Kraken. “This is really fantastical. So my question to counsel here is: How could any of you as officers of the court present this affidavit?”
Powell argued that the sheer volume of her filings proved she had exercised appropriate care. “We filed a massive and detailed complaint in federal court,” she said. “The very fact we filed 960 pages of affidavits with the complaint shows due diligence on our part.…The only way to test that is in the crucible of a trial or an evidentiary hearing.” To which Parker replied: “Volume, certainly for this court, doesn’t equate with legitimacy or veracity.”
The judge repeatedly pressed Powell and the other lawyers to explain how they assessed the evidence they decided to present in court—for example, the allegation that “tens of thousands” of absentee ballots mysteriously showed up in a counting room the morning after the election, which was based on testimony from an affiant who had witnessed no such thing. To Parker’s dismay, the lawyers often could not even confirm that they had spoken to the affiants, many of whose statements were borrowed from an earlier, similarly unsuccessful case filed in state court by different plaintiffs.
Parker clearly was not satisfied by Powell et al.’s responses. “There’s been no kind of minimal vetting,” she said. “Every lawyer has that duty to do a minimal amount of investigation before filing evidence or what’s purported to be evidence [in] this court.”
In addition to possible sanctions in Michigan and other states, Powell faces defamation lawsuits filed by Dominion Voting Systems and Smartmatic, two companies she implicated in the supposed criminal conspiracy to deny Donald Trump his rightful victory, and by a Dominion executive she named as a key figure in the fictional plot. Responding to Dominion’s $1.3 billion suit in March, Powell said her claims about the company were not actionable, because “no reasonable person” would have understood them as statements of fact. More recently, Powell said she plans to defeat the lawsuit by “expos[ing] what really happened” during the election, because “we meant what we said, and we have the evidence to back it up.”