The current focus on the Trump criminal trial in New York (along with the other pending criminal trials and potentially dangerous U.S. Supreme Court ruling on immunity)—like so many Trump atrocities that produce the almighty “engagement” sought by the corporate media—can make us forget that Trump had the assistance of dozens of cronies and co-conspirators in his bid to overturn the 2020 election.
Many of these Trump co-conspirators are attorneys. Some of these attorneys have been subject to judicial sanctions (i.e., having to pay attorney fees for the opposition), state bar grievance complaints, and even criminal indictments for their role in attempting to overturn the 2020 election results. A flurry of litigation attempted to challenge the election results based on claims of “fraud” and manufactured evidence. When this didn’t work, the strategy turned to creative legal theories around the arcane electoral college, along with the manufacturing of “fake” alternate electors.
The primary players in these events--Rudy Giuliani (NY, June 24, 2021 and DC, July 7, 2021, John Eastman (CA, March 27,2024), Kenneth Chesebro (MA, March 14, 2024), Jeffrey Clark (DC, April 29, 2024) and L. Lin Wood (GA, July 2023 and CO, December 2023)—have been subjected to various adverse actions involving their license to practice law—from having it suspended (Giuliani and Chesebro) to judicial or committee recommendations for disbarment. Note that none of them have been officially disbarred as of this date. Which gives you some idea of the aggravatingly slow pace of justice.
Just as attorneys were the bad guys in the Big Lie and its associated criminal schemes, they are also the good guys—Judges upholding the rule of law, bar disciplinary boards (which are often comprised of both paid staff and volunteer attorneys), as well as groups like Lawyers Defending American Democracy and the Brennan Center for Justice who advocate for the rule of law, democracy, and voting rights—the institutions that give the rest of us a voice in the system and set the guardrails to keep it honest.
In the remainder of this article, I will give a brief overview of the status of Big Lie-related bar complaints in Texas, followed by a brief discussion about why attorneys might be willing to jeopardize their law licenses.
Ken Paxton/Brent Webster
As some here may recall, I filed complaints against TX Attorney General Ken Paxton and his First Assistant Brent Webster for their part in filing suit against four other states (PA, GA, MI, and WI), arguing irregularities in these states’ appointment of electors (which had already been litigated and decided by the states own courts). I will not go into the intricacies of the legal arguments here, but rather provide a brief history of the procedural hoops that had to be jumped through in order to get the case where it is now—which some three years later is nowhere near resolution on the merits.
The complaints were initially dismissed, so I appealed them to the Texas Board of Disciplinary Appeals (BODA), which reversed the dismissal. [According to Bar sources, BODA reverses complaint dismissals in only 7% of cases.] Webster filed a response on July 15, 2021, and (for some reason unknown to me), Paxton was permitted to file a response sometime later. On July 21, 2021, Lawyers Defending American Democracy filed its own complaint against Paxton (but not Webster) for the same conduct. The LDAD complaint was signed by a number of past State Bar Presidents and Grievance Committee Chairs. During this process, I learned that over 80 complaints had been filed on the same issue, but only four of us survived in the Paxton matter and only my complaint survived in the Webster matter.
A hearing was initially scheduled on the Webster matter for November 3, 2021, which was then consolidated with the Paxton hearing and postponed until January 5, 2022.
When we didn’t hear from the State Bar past a deadline in March, I presumed that something was afoot. In Texas, if the Bar has determined that discipline is warranted, the Respondent (attorney charged with misconduct) can choose whether to have a hearing before a Bar Disciplinary Panel (where it would remain confidential) or before a state court in their home county (where it would now become public).
Both Paxton and Webster elected to have their cases tried in their respective local courts. [Paxton strategically kept his professional “home” in Collin County rather than in Austin-based Travis County.] The first thing that they did was to challenge jurisdiction by arguing that the Bar could not discipline Paxton (or anyone in the AGs office) due to sovereign immunity and the separation of powers (in short, Paxton argued that he was above the law).
Webster’s case was heard in Williamson County. The Williamson County judge dismissed the Bar’s complaint, but the Bar appealed the case and the Eighth Judicial District Court of Appeals (based in El Paso) reversed the dismissal on July 13, 2023. The court held that (what should be intuitive to those of us who are grounded in reality) the Bar had authority (granted by the Supreme Court) over the conduct of all attorneys in the state, and its action in no way abrogated the powers of the AGs office. Webster has filed something with the Texas Supreme Court (which has made no decision yet).
In Paxton’s case, the same “plea to the jurisdiction” was tossed by the Collin County trial judge and Paxton appealed. The Fifth District Court of Appeals (based in Dallas) upheld this ruling on April 18, 2024 (agreeing that the Bar has jurisdiction to discipline Paxton. So now, both cases are headed to the Texas Supreme Court. AND we are still arguing about jurisdiction and other procedural questions, not once having addressed anything about the actual misconduct.
Ironically, Paxton had to request a postponement of oral argument before the 5th DCA because he was in the middle of an impeachment trial. Paxton—who in addition to bar discipline—has managed to avoid charges in a securities fraud trial, evade impeachment, and continues to avoid having to testify under oath by stating he won’t contest the so-called “whistleblowers” lawsuit that is based on the allegations leading to his impeachment. Now 18 other Republican AGs have joined Paxton’s fight against Bar discipline—apparently hoping to remove all avenues of accountability (or any way of ever ascertaining the truth) before the next time they want to overturn an election.
Sidney Powell
Like Paxton and Webster, Powell opted to have her case heard in Dallas County. Although I did not follow this case with the same attention as the Paxton/Webster cases, what I did see of it appeared to be that Powell was flooding the Bar with motions and exhibits, essentially creating the discovery war from hell. It was hard to follow what exactly was going on. Judge Andrea Bouressa dismissed the Bar’s case on the basis of filing and clerical errors without ever reaching the merits. Even in Texas, several editorials urged the Bar to continue its pursuit of discipline.
Which the Bar did. But on April 17, 2024, the 5th District DCA has upheld the dismissal of the disciplinary charges against Sidney Powell. Again, Texas editorials are urging the Bar to either appeal or refile. Notwithstanding the Bar’s mishandling of the case, complete dismissal with no allowance for correction of the errors amounts to a travesty of justice given the seriousness of the charges. The analysis seemed to focus entirely on the Bar's mislabeling of exhibits, with no discussion at all about the underlying alleged malfeasance.
Moreover, this was pursuant to a motion for summary judgment, where the question is whether or not there is a disputed material fact. Intuition alone would suggest that in all this sound and fury there would be one or more factual disputes. It would seem that in a discipline case, credibility—which is difficult to determine from documentary evidence alone—would be a major issue. Unfortunately, the Bar made the decision (or agreed) to forgo oral argument, which bolstered the blindered focus on documentary evidence (and even this was limited to the Georgia case). In the one case where Powell was subjected to questioning by a judge--the sanctions case before Michigan US District Judge Linda Parker--Judge Parker determined that Powell (along with the other sanctioned attorneys) filed the Michigan lawsuit "in bad faith and for an improper purpose."
In my opinion (and I do not purport to suggest to the Bar what to do next), it might be a good idea to update and refile the disciplinary charges against Powell. Judge Parker's sanctions order sets forth the (Michigan) infractions in particular detail--which might help the Bar wade through all of the crap that Powell threw at them. Ironically, in the Rule 11 sanctions hearing before Judge Parker, all of the attorneys attempted to argue that they should not be held accountable for "electronic signatures" and argued about which of them actually drafted the pleadings.
“…what very clearly reflects bad faith is that Plaintiffs’ attorneys are trying to use the judicial process to frame a public “narrative.” Absent evidentiary or legal support for their claims, this seems to be one of the primary purposes of this lawsuit. Second, there is a basis to conclude that Plaintiffs’ legal team asserted the allegations in their pleadings as opinion rather than fact, with the purpose of furthering counsel’s political positions rather than pursuing any attainable legal relief…circumstancessuggest that this lawsuit was not about vindicating rights in the wake of alleged election fraud. Instead, it was about ensuring that a preferred political candidate remained in the presidential seat despite the decision of the nation’s voters to unseat him.”
Judge Linda Parker
Since the original Bar complaint against Powell was filed (which included the Michigan Governor, Secretary of State and Attorney General), Powell has pled guilty to six misdemeanors in the GA election interference criminal case. Although the plea deal allowed Powell to avoid the original felony charges, she has admitted to acts amounting to "conspiracy to commit intentional interference with the performance of election duties"--acts which highly suggest corrupt motive and dishonest behavior.
Fortunately, Michigan is also pursuing bar discipline against Powell, where she is again attempting to interminably delay the proceedings with a flurry of tangential pleadings such that the actual merits are never addressed. Powell is now attempting to argue that the Texas 5th DCA ruling dismissal is res judicata in the Michigan disciplinary proceedings. Apparently, Powell had previously made the arguments that (1) Michigan has no jurisdiction over her because she is not licensed in Michigan, and (2) the Texas trial court dismissal (which the TX ODC appealed) precludes further disciplinary proceedings in Michigan.
A March 11th response from the MI Attorney Grievance Commission argues that the Board does have jurisdiction both because Powell consented to it by signing and filing a pleading in the state (which is consistent with similar rules in other states), and res judicata does not apply because (1) there is no “privity” (commonality of interests) between the Texas and Michigan disciplinary authorities, and (2) there was no “trial on the merits” in Texas (an understatement). Hope that the Michigan Attorney Discipline Board continues to pursue justice against Powell. Then maybe the Texas ODC can go for reciprocal discipline.
Another interesting detail is that on March 11, Powell was represented by two attorneys from Collins, Einhorn and Farrell, a Michigan-based firm that handles ethics and grievance defense. However, in Powell’s more recent filings, she appears to be representing herself. It has always seemed that these election-denying co-conspirators were able to tap into the deep pockets of dark money—or, alternatively, start their own Go-Fund-Me style grift—but maybe there is a limit to this (and Powell has reached it).
Louis Gohmert/William Sessions
I filed initial complaints against the attorneys involved in Gohmert v Pence, a case that had a number of previous iterations, but was dismissed by a U.S. District Judge in the Eastern District of Texas for lack of standing. Complaints were filed against two Texas attorneys: William Sessions (who had signed the pleadings) and Louis Gohmert (who had appeared as a Plaintiff along with a number of “fake electors” from Arizona). Apparently, Gohmert’s role was to get the case out of Arizona and into Texas before a (hopefully) friendlier Republican Federalist Judge. Alternatively, the scheme was to create diversity jurisdiction (because Gohmert is not an AZ resident) to get into federal court.
In Texas, the complaint against Gohmert was dismissed by BODA on June 10, 2021. Although the ODC determined that the original complaint against Sessions sufficiently alleged “Professional Misconduct or a Disability or both,” the complaint was dismissed by a District 2 Grievance Panel on May 27, 2021.
The two DC attorneys were Lawrence Joseph and Julia Z. Haller. Lawrence Joseph also appears as a co-signer on the Paxton case which is the subject of that complaint. In early 2021, the District of Columbia Bar took the position that (1) it would not docket a complaint from someone with “no personal knowledge,” and (2) it would not involve itself in issues that it deemed were “motivated by political interests.” However, the letter from the DC Office of Disciplinary Counsel (ODC) stated that it might independently decide to investigate, but such a decision would be confidential. I did not pursue complaints against the D.C. attorneys. Lawyers Defending American Democracy informed me they were in the process of challenging the DC Bar’s stated positions.
As an aside, the District of Columbia and the State of California are unique in that disciplinary hearings are open to the public and livestreamed. This is how I was able to follow the DC hearing involving Rudy Giuliani and the California hearing against John Eastman. By contrast, most Bar discipline (investigation and process phases) takes place within a black box of confidentiality. The public may not even know if a complaint has been filed against an attorney unless (and until) some kind of discipline is imposed. Texas is unusual in that Respondents (charged attorneys) are allowed to choose whether they want a public hearing in a local district court or maintain the confidentiality of a bar committee hearing.
But more has come to light since the dismissal of the Gohmert case. The DC ODC has instituted formal disciplinary proceedings (January 9, 2024) against Lawrence Joseph and Julia Z. Haller for their part in the Gohmert and other Big Lie-related litigation. Hearings in these consolidated matters will be livestreamed on September 30 through October 10, November 6-8, and November 12-18, beginning at 9:30 am Eastern time. You can watch the hearings by following the links here.
Additionally, the State of Arizona has issued criminal charges against the fake electors named as Plaintiffs in the Gohmert v Pence case, along with a number of other co-conspirators we are all now becoming familiar with. Not surprisingly, Republicans everywhere are howling and shrieking about the “weaponization of the law.” God forbid that these entitled authoritarians ever be held accountable to the rest of us.
So…today (May 14, 2024) I refiled updated complaints against Gohmert and Sessions in Texas, citing the DC ODC charges and the AZ indictments. I was going to file in late April (after the AZ indictments came down), but the CDC website has been down for at least the past two weeks, so I had to mail them in (paper, ink, postage). I will confess that conspiracy theories briefly crossed my mind, but concluded (Occam’s’ razor) it was more likely due to typical tech malfunctions that plague us everywhere else. Let the howling and whining begin…
Why Are Attorneys Willing to Risk Their Law Licenses?
A question that some have raised is why would attorneys jeopardize their law licenses by filing high-profile yet arguably meritless cases? Mark Elias (Democracy Watch) notes with alarm that the “quality” of Trump’s attorneys appears to be improving, which suggests that Trump has plenty of money coming in both from his billionaire cronies and grifting off the MAGA base:
Elias also asks why attorneys (especially reputable ones) would risk their law license in taking on Trump’s questionable “legal” causes? Studies of lawyers who have been subjected to discipline (prior to the Trump election cases) found that most of them are solos or in small firms in practice areas serving “unsophisticated clients.” Solo practitioners comprise 30% of lawyers but receive 56% of discipline. Large-firm lawyers make up 10% of the profession yet receive only 2% of discipline.
One proposed theory is that attorneys who practice alone or in small firms don’t receive adequate supervision or peer review. Of the attorneys subject to discipline in the Trump election cases, 11 out of 22 appear to be operating as solos, and four of them work in small firms (six or fewer lawyers).
Another theory is that solo and small firm attorneys face huge financial pressures simply keeping their doors open and their practices solvent, implying that they are so hungry for paying business they aren’t motivated to do much investigating or questioning of a potential client. We also know that Trump is infamous for not paying his bills—including his legal bills—so why would any attorney risk both not getting paid and their law license?
One possible explanation is the perverse incentive structure and the “market signals” in campaign and election litigation. The stakes are high for both the lawyers and their politician-client. A lawyer who is viewed as aggressive—win or lose—may gain professional prominence along with other opportunities, perhaps additional clients, or lucrative political and judicial appointments if their client is elected. Moreover, thanks to Citizens United v FEC, huge amounts of dark money can now be funneled into 501(c)(4) and 501(c)(6) (trade association) organizations that are shielded from campaign disclosure laws. So…a big payday may be possible regardless of the personal wealth (or financial responsibility) of the client himself.
Perhaps the most alarming explanation in the case of the Trump co-conspirators is that various members of the original conspiracy have determined that— if they just hang on and delay justice long enough—they will be able to complete the coup and thus elevate themselves above the law and any accountability for their previous acts of corruption. The loyalists will be rewarded with positions of power. Until the malevolence turns—as it inevitably does—against anyone of them who doesn’t demonstrate sufficient loyalty.
The forces of oligarchy/plutocracy have been attempting to undermine democracy practically since America’s founding. The pendulum between democracy (the people participate in decisions affecting them) and plutocracy (the oligarchs impose their will downward upon the masses) has swung back and forth throughout history. Our founding institutions—along with their (not ever fully realized) ideals of equal voice and equal justice have generally survived and even improved over the long run: slavery abolished in 1865, freed slaves allowed to vote in 1870, women allowed to vote in 1920, the Civil Rights era of the 1960s. Yet these positive developments were met with—sometimes extreme and violent—resistance.
Democracy has been tested time and again, but today it seems to be in an especially precarious place.