In November 2020, in the United States presential election, Joe Biden of the Democratic Party secured more votes in the state of Michigan than President Donald Trump of the Republican Party. On November 25, 2020, a group of Michigan voters and nominees of the Republican Party filed a lawsuit against the Michigan Governor, Gretchen Whitmer, the Secretary of State, Jocelyn Benson, and the Board of Canvassers. The pleading was signed by three lawyers, Sidney Powell, Scott Hagerstrom and Gregory J. Rohl and included the names of a further four lawyers, Emily P. Newman, Julia Z. Haller, L. Lin Wood and Howard Kleinhendler. A further pleading included the name of lawyer, Brandon Johnson.

The plaintiffs alleged violations of electoral law and the Constitution’s Fourteenth Amendment. Their main arguments were that the state defendants had “failed to administer the November 3, 2020 election in compliance of the Michigan Legislature in the Michigan Election Code” and “committed a scheme and artifice to fraudulently and illegally manipulate the vote count to make certain of the election of Joe Biden as President of the United States” [p. 7]. The plaintiffs attached “hundreds of pages of exhibits” including affidavits “in support of the factual allegations” in their pleadings [p. 7]. The plaintiffs requested the court to decertify the election results and order the defendants “to transmit certified election results that state that President Donald Trump is the winner of the election” [p. 7].

On December 7, 2020, the Court denied the plaintiffs’ motion, on “any one of several legal theories”, describing it as “stunning in its scope and breathtaking in its reach” by seeking to disenfranchise the voters of Michigan [p. 8]. The plaintiffs’ attorneys then filed appeals to the Court of Appeals and the Supreme Court.

On December 15, 2020, the City of Detroit served a “Safe Harbor” letter and motion on the plaintiffs’ attorneys, which threatened sanctions, disciplinary action, and disbarment referral in relation to their conduct in the case challenging the certification of the election results. The Governor and Secretary of State also filed a motion for sanction against the plaintiffs and their attorneys for their conduct in the primary litigation.

The federal United States Code which governs the Judiciary and Judicial Procedure states that any attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personal the excess of costs, expenses, and attorneys’ fees reasonably incurred because of such conduct”.

Justice Linda V. Parker of the United States District Court of Michigan delivered the judgment. The central issues for determination was whether the plaintiffs’ attorneys engaged in abusive litigation practices, and whether a sanction would infringe their right to freedom of speech under the First Amendment.

The State Defendants argued that the attorneys had “unreasonably and vexatiously multiplied the proceedings” when they failed to dismiss the case when the matter became moot and because their allegations “were not well-grounded in fact” [pp. 14-15]. They submitted that the attorneys should be sanctioned with monetary sanctions of their fees as well as their fundraising campaigns to challenge the election and an injunction that the attorneys could not file future actions without first obtaining judicial authorization.

The attorneys argued that they had filed the case in good faith as they “genuinely believed the factual allegations in this lawsuit” and so should not be sanctioned [p. 65]. The attorneys stated that “[s]etting a precedent to sanction an attorney whose case is denied at the district court level on procedural grounds is a grave abuse of the disciplinary process and potentially constitutes intimidation for filing a grievance against the government, which is a core protection of the First Amendment” [p. 92]. The attorneys compared themselves to journalists: they submitted that they were entitled to the same protection journalists receive when they repeat statements of sources which later turn out to be false and that both journalists and attorneys “must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical” [p. 82].

The Court described this as case as representing “a historic and profound abuse of the judicial process” [p.1].

The Court noted that the attorneys’ reliance on a case, United States v. Throckmorton, 98 U.S. 61 (1878), which did not have direct or indirect application to the facts at hand demonstrated “that this suit has been driven by partisan political posturing, entirely disconnected from the law” and “is the dangerous product of an online feedback loop, with these attorneys citing ‘legal precedent’ derived not from a serious analysis of case law, but from the rantings of conspiracy theorists sharing amateur analysis and legal fantasy in their social media echo chambers” [p. 55-56]. In respect of the facts upon which the case was founded, the Court found that “no reasonable attorney would accept the assertions in those reports and affidavits as fact or as support for factual allegations in a pleading when based on such speculation and conjecture” [p. 66]. In addition, the Court found that the attorneys “presented affidavits that were based on conjecture, speculation, and guesswork” [p. 70]. It rejected the attorneys’ argument that their good faith should mean they avoid sanction.

The Court examined the attorneys’ use of the First Amendment in their arguments and described their attempt to argue that sanctions would violate their First Amendment right to access the courts as “incorrect” [p. 92]. The Court referred to Mezibov v. Allen, 411 F.3d 712, 717, 720-21 and Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991), in holding that “[a]n attorney’s right to free speech while litigating an action ‘is extremely circumscribed’.” [p. 92]. The Court quoted Mezibov as noting that “[a]t first blush, the courtroom seems like the quintessential arena for public debate, but upon closer analysis, it is clear this is not, and never has been, an arena for free debate” [p. 92]. The Court dismissed the attorneys’ argument that attorneys are comparable to journalists, and stated that attorneys cannot avoid accountability for “recycling affidavits from other cases to support their pleadings” without conducting proper due diligence [p. 83].

In accepting that there are platforms “including print, television, and social media—where protestations, conjecture, and speculation may be advanced” the Court stressed that these expressions cannot be made in a court [p. 3]. It also emphasized that “while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon ‘entering’ the courtroom” [pp. 3-4].

The Court noted that one of the attorneys admitted to making statements in favor of her political position and candidate, but, with reference to Saltany v. Reagan, 886 F.2d 438, 440 (D.C. Cir. 1989) and Knipe v. Skinner, 19 F.3d 72, 77 (2d Cir. 1994), it held that an attorney cannot support a lawsuit based on unreasonable opinions and hyperbole and that it is unacceptable to use the judiciary “as a political forum to satisfy one’s political agenda” [p. 91].

In determining whether the attorneys acted with an improper motive, the Court held that attorneys have an obligation to look beyond their “own prejudices and political beliefs” and cannot simply repeat opinions and beliefs “even if shared by millions” [p. 93]. The Court underlined that “[s]omething does not become plausible simply because it is repeated many times by many people” [p. 94].

The Court held that the attorneys’ bad faith was demonstrated by their attempt to “use the judicial process to frame a public ‘narrative’”  without reliance on evidence or legal support [p. 89].