Sanctioning lawyers who are fighting to uphold the country’s election process is a great way to scare away competent, qualified, and strong ones from taking charged cases.
By Deion A. Kathawa | August 6, 2021
The Hill reports that a Colorado federal magistrate judge, N. Reid Neureiter, “sanctioned lawyers who challenged the 2020 presidential election results, calling their election claims ‘fantastical.’” “Plaintiffs’ counsel shall jointly and severally pay the moving Defendants’ reasonable attorneys [fees]”—which is very likely to be many thousands of dollars. This ruling comes while a federal district judge in Michigan, Linda Parker, considers imposing sanctions on attorneys Sidney Powell and Lin Wood, both of whom raised questions about the propriety of the 2020 presidential election.
In January, James Boasberg, a federal district judge in Washington, D.C., “referred a Minnesota lawyer [Erick Kardaal] for potential discipline” for his lawsuit regarding the last election. And these three proceedings occur in the shadow of the sanctioning of Rudy Giuliani by a New York state appellate court, which saw fit to suspend his law license for representing his client, then-President Donald J. Trump, in the wake of the 2020 election. Giuliani likely will face “permanent sanctions” at the conclusion of the process.
These are deeply troubling developments. Even the Bush v. Gore saga didn’t generate such official acrimony.
Attorneys in every state are duty-bound to offer zealous advocacy for their clients. This doesn’t mean that they can lie to the court or to the other lawyers involved in a case, or make a mockery of the process, but it does mean that they have an ethical obligation to press every possible good-faith claim in their client’s favor as hard as they possibly can. The American legal system is adversarial; therefore, a case’s legal soundness is only as good as the competition between the lawyers who appear before the court.
The Colorado magistrate and the New York appellate court both rested their decisions imposing sanctions on the alleged “threat” that the cases posed to the continuity of America itself; both cited the January 6, 2021 “insurrection.” (In Giuliani’s case, shockingly, almost none of the statements that the New York court cited as the basis for its sanctions ruling were things that Giuliani said in court filings or to the court itself; the vast majority were public utterances. First Amendment, anyone?)
This is all more than a little ridiculous, and if Americans paid even half as much attention to the goings-on of the courts as these jurists seem to think they do, we certainly would not be in such dire straits. Fact is, hardly anybody does follow judicial minutiae very closely, and most don’t follow it at all. Back in 2011, a poll showed that only 37 percent of those polled knew that there are nine justices on the Supreme Court of the United States, and a poll released in January 2016 revealed that 10 percent of college graduates think “Judge Judy” is one of them!
Given the appalling lack of civic literacy surrounding even the nation’s highest, and consequently most visible, tribunal, I’m on very safe ground when I say that these lower court cases emphatically are not “the stuff of which violent insurrections are made” (which is how the hyperventilating Colorado magistrate characterized the case before him).
Elites are psychologically predisposed to swat down, with extreme prejudice, any perceived threats to the ruling class’ continued legitimacy; it has ever been thus. But make no mistake: This sort of thing, if it spreads and becomes normalized as the routine operation of our legal system, will have dire consequences.
Our legal system, as I noted, is premised on zealous advocacy. It grew out of the medieval practice of “trial by combat.” In that system, it became perfectly acceptable for people to hire strong (and thus expensive) champions to win a trial on their behalf. This is roughly the role that lawyers play today—just without the literal blood, physical injury, and death.
But the system only works if both sides have access to strong, vigorous advocates. You can imagine how trial by combat would go if one side was only permitted to hire measly runts to defend them in battle, while the other side was able to hire people like “The Mountain.” Barring a miracle, “The Mountain” is going to win. But such a disparity is, in effect, what is happening now. The system is imploding because the ability to access quality legal representation for certain cases and causes increasingly is subject to elite approval.
The penalties levied on lawyers who litigate claims the ruling class finds icky and verboten are premised on a serious misunderstanding of the nature of the legal profession. Lawyers do not have to agree with their clients; in fact, you simply can’t be a good lawyer if you expect to agree 100 percent with everyone who hires you. To say that a lawyer who represents a client and therefore a cause that some people think is odious should be punished for that representation is to destroy our entire system of justice.
It appears the Left is becoming more comfortable enforcing its orthodoxy through formal channels. Not only will you get cancelled if you represent someone they don’t like, you’ll also be fined, sanctioned, and held in contempt of court. If lawyers are unable to represent clients as zealously as is humanly possible, then our legal system is no more.
Lawyers are hired guns. They’re paid to advocate on behalf of their clients’ interests. They do not have to agree with or even like their clients. But they do have to fight like hell for them.
Sanctioning lawyers who are fighting to uphold the country’s election system, to uphold “ballots”—“the rightful and peaceful successors of bullets,” as Abraham Lincoln put it—is a great way to scare away competent, qualified, and strong ones from taking charged cases.
Maybe that’s the point.
If this transmogrification becomes complete, our legal system will have been gutted, even as, appearance-wise, it will seem to be the very same venerable system passed down to us and developed over the centuries by our ancestors. And for what?
All to stick it to the Bad Orange Man.
This way lies madness, but there’s still time to course correct. If we care about justice, we will.
About Deion A. Kathawa
Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. Subscribe to his “Sed Kontra” newsletter.