The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This afternoon the U.S. Court of Appeals for the Sixth Circuit largely upheld a district court order imposing significant sanctions on Sidney Powell and other "Kraken" lawyers who had filed various unsubstantiated and frivolous claims challenging the results of the 2020 Presidential election in Michigan. While trimming the total penalties awarded, and lifting the sanctions imposed on two named attorneys, the court's decision affirmed that the attorneys engaged in sanctionable conduct through a combination of filing frivolous claims and failing to exercise proper diligence as to the veracity of claims made in their filings.
Judge Kethledge wrote for the unanimous panel in King v. Whitmer, joined by Judge Boggs and Judge White. His opinion begins:
Three voters and three Republican nominees to the electoral college in Michigan brought this suit in a bid to overturn the results of the state's 2020 presidential election. The complaint plausibly alleged that Republican election challengers had been harassed and mistreated during vote counting at the TCF Center in Detroit, in violation of Michigan law. But the complaint also alleged that an international "collaboration"—with origins in Venezuela, extending to China and Iran, and including state actors in Michigan itself—had succeeded in generating hundreds of thousands of fraudulent votes in Michigan, thereby swinging the state's electoral votes to Joseph Biden. Many of those allegations—particularly the ones concerning Dominion voting machines—were refuted by the plaintiffs' own exhibits to their complaint. Other allegations arose from facially unreliable expert reports; still others were simply baseless. The district court found the entirety of the plaintiffs' complaint sanctionable, and ordered all of plaintiffs' attorneys, jointly and severally, to pay the defendants' and the City of Detroit's reasonable attorney's fees. We find only part of the complaint sanctionable, and thus reverse in part and affirm in part.
While rejecting the district court's conclusion that the evidence showed the attorneys had filed suit for an "improper purpose" under Rule 11(b)(1), the panel found ample basis for the district court's conclusion that the attorneys failed to fulfill their obligation to "engage in a reasonable prefiling inquiry to ensure that a pleading or motion is 'well grounded in fact[.]'" As the panel explained, "a court may sanction attorneys under Rule 11(b)(3) for factual assertions they know—or after reasonable investigation should have known—are false or wholly unsupported."
Among other things, the panel concluded the district court was correct that a "whole raft of allegations" concerning alleged foreign interference in election equipment was sanctionable, and that the attorneys' made readily falsifiable claims concerning equipment and systems used in Michigan, submitted "baseless" affidavits, and misrepresented others. For instance, the panel agreed that the "most provocative allegation" made about the Michigan election results–that ten of thousands of fraudulent votes were added to the election totals–lacked any "credible basis." Claims alleging violations of Michigan law were also found wanting. "The statute at issue here ran three pages," wrote Kethledge. "A reasonable prefiling inquiry as to all these allegations would have included reading it."
The court concluded that a few of the allegations were not sanctionable, and that two attorneys were sanctioned who should not have been, but otherwise affirmed the district court's conclusions, and reduced the financial award by a modest amount.
I expect Powell, et al., will file further appeals, but I doubt additional filings will produce different results.