Terry H. Schwadron
Jan. 13, 2020
Amid impeachment talk to hold Donald Trump responsible for Insurrection Day — and his continuing defiance — we’re seeing both a broadening of distaste for hate talk from Trump supporters and a doubling down on flailing against authority of all kind that somehow has been personified in Trump.
What makes it remarkable is that we’re now arguing about what to argue about.
It seems difficult to know what is at stake when anti-government forces are arrayed around the state house in Boise, Idaho to call out its conservative Republican governor, for example, or for Trump-clad insurgents to talk about “patriotism” and simultaneously to issue armed threats against the pending inauguration of Joe Biden. At least in Michigan, we had understood the earlier swarms at the state house as opposing mask-wearing.
It has become anti-government chaos that sounds more dangerous by the hour.
As a nation, we’re hailing efforts to block hate speech on social media even as we express distaste for Big Tech to suddenly control long-awaited editorial control that it has avoided for years.
Exactly what would be “solved” by listening to insurrectionist or crackpot versions of election fraud or even by keeping Trump is totally muddled. We can’t agree that impeachment is about holding Trump accountable for his inciting speech. In the House, even Republicans are starting to wonder if they are against or for impeachment, about whether they are obligated to protect a Trump who won’t even acknowledge the building violence as anything but anger over his own loss at the polls.
Amid the legal arguments over ousting Trump are under way, we’re seeing the business community halting political contributions to those in Congress who backed election challenges, and groups of historians, lawyers and others attacking inciteful speeches. We’ve even seen a backlash against Trump-owned businesses, with the PGA canceling tournaments at Trump’s New Jersey property, banks suddenly withholding their business from the Trump Organization, entities including New York City are ending contracts with Trump’s companies and advice from ownership to conservative talk radio to tone down anything resembling rebellion. Those are things, as Washington Post columnist Jennifer Rubin notes, that should be permanent, not just in crisis response.
But that’s no substitute for removing Trump and blocking him from office ever — or ridding ourselves of hate.
One Clear Target: Lawyers
Even Trump himself continues to confuse, yesterday deflecting criticism of his own role in inciting the Capitol attack by attacking impeachment proceedings as prompting violent response. A review of the hours of Trump’s paralysis watching the riots without reacting is simply chilling and almost worse than inciting the riot itself. This is not leadership. This is unfitness for the job — even if the job only lasts another week.
In the confusion, there is a clear target for those lawyers who carried the false water of election fraud for the Trump campaign. In courts, before state bars, in the political arena, now we’re seeing the political bill come due for the Rudy Giuliani crowd and those bringing so-called frivolous lawsuits, knowingly pursuing cases on overturning election results that lacked merit.
Weirdly, we hear that Trump is considering Giuliani to lead his defense against impeachment charges at the same time that Giuliani himself is facing a federal criminal investigation, his Ukrainian contacts are being sanctioned by Trump’s own Treasury Department, and Giuliani himself faces disbarment proceedings from the New York State Bar Assn. over inciting the riot. YouTube has removed Giuliani videos about the election challenges.
The Trump White House faces yet more legal pressure over reports that it pressured the U.S. attorney in Atlanta to join in finding election fraud, and then ordering his dismissal when he refused. U.S. Attorney Byung Jin Pak resigned suddenly last week in connection with the election challenges and whether Trump’s shakedown call to Georgia officials violated elections laws. According to Talking Points Memo, Trump personally ordered appointment of Bobby Christine as the new acting U.S. attorney, bypassing the career prosecutor who was in line to succeed Pak. .
U.S. District Judge James A federal judge in Washington, D.C., last week told that lawyers representing the Wisconsin Voters Alliance that they and others in the election filings could face professional discipline.
There are more:
— Dominion, the voting machine company, has filed a billion-dollar defamation suit against lawyer Sidney Powell over her continued campaigning that the machinery flipped votes in selected districts from Trump to Joe Biden. Dominion has notified upwards of 20 other individuals and groups that accused the company of fraud to keep materials that may subpoenaed in related cases. The Hill.com reported that including Giuliani, Sidney Powell and Lin Wood are facing mounting ethics complaints.
— Cleta Miller, the lawyer advising Trump on the call to “find” votes in Georgia to overturn the state election results in his favor, was forced to resign as a partner in her own law firm, Foley & Lardner.
— Michigan Atty. Gen. Dana Nessel has asked Michigan-based U.S. District Judge Linda Parker to consider sanctions against Powell, Wood and their co-counsel for what Nessel called a “baseless lawsuit.” Delaware Superior Court Judge Craig Karsnitz suspended Wood’s legal credential in that state for unprofessional behavior in lawsuits aimed at overturning election results in Wisconsin and Georgia. The judge identified various alleged ethical breaches, including Wood having filed a suit in a plaintiff’s name without permission, and submitting a false affidavit.
— Lawyers Defending American Democracy, a nonpartisan national lawyers association called for Rep. Louis Gohmert, R-Tex., and his attorneys to be penalized for their lawsuit against Vice President Mike Pence seeking to overturn the result of the 2020 presidential election, for representing a client “in a way that is frivolous, dishonest, untruthful, and malicious.”
What Are the Rules?
Clearly, we can hire lawyers to bring our gripes to court. But apparently, there are professional and even legal limits.
There is a federal law at issue governing frivolous lawsuits in U.S. courts, known as Federal Rule of Civil Procedure 11 or Rule 11. As The Washington Post explained, the rule requires that those making cases in court must not be doing so “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” It also requires that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument.”
The American Bar Association also prohibits bringing or defending a lawsuit “unless there is a basis in law and fact for doing so.” The ABA last month noted publicly that it was looking at these questions and reissued its rules for professional behavior.
A lawsuit based on bogus claims that is brought for partisan political purposes would certainly risk violating such rules. In addition, a judge can punish a lawyer for such frivolous claims.
The Broader Response
What makes it so wild that there is so much talk about finding unity is that we can’t even decide on what subject matter we should find common ground.
You’d think , for example, that we could agree that the elections had produced a common truth. But clearly that still is not the case.
It should be a no-brainer that we will stand firm against threats on our public officials. Instead, we’re deploying 15,000 National Guardsmen to the Capitol, and more to state houses.
We should be able to think that Law & Order Republicans would be joining with Democrats to make people, including Trump, accountable for actions that are dangerous and illegal. But we’re not seeing that.
We should be focused on the thinking behind the 14th amendment, as described in a New York Times op-ed: “Congress can immediately pass a law declaring that any person who has ever sworn to defend the Constitution — from Trump to others — and who incited, directed, or participated in the Jan. 6 assault “engaged in insurrection or rebellion” and is therefore constitutionally disqualified from holding office in the future.”
Otherwise, what is it exactly that we’re supposed to be unified about?