Monday, Federal District Court Judge Timothy Batten Sr. expressed exasperation as he dismissed one of the latest of dozens of lawsuits filed by President Trump or his allies that have sought to override the result of the presidential election. All the suits have been kicked out of federal and state courts because there is no evidence of fraud, much less enough of it to cancel a democratic election.
“In their complaint, the plaintiffs essentially ask the court for perhaps the most extraordinary relief ever sought in any federal court in connection with an election,” said Batten, a Republican-appointed judge, in dismissing a claim brought by attorney Sidney Powell that sought to overturn Georgia’s certification of election results that were in Joe Biden’s favor. “They want this court to substitute its judgment for that of 2.5 million Georgia voters who voted for Joe Biden, and this I am unwilling to do,” Batten said.
But written and verbal rebukes by judges dismissing these groundless complaints, and the one-sentence rejection by the US Supreme Court of the first such case to reach it, are not enough. The courts must formally sanction the attorneys involved in flooding courts with these baseless claims, and state legal disciplinary boards must hold them accountable for the role they are playing in undermining American’s faith in democracy.
Rudy Giuliani, Jenna Ellis, Joseph diGenova, Victoria Toensing, and Powell — the last of whom recently ended her official role on the legal team but who is still pressing the cases on her own — have violated their oath-sworn duties as officers of the court to protect the judicial system.
“Lawyers are gatekeepers to filter out what gets presented to a court to ensure that the filings are not garbage,” said Stephen Gillers, a New York University law professor and expert on ethical rules governing lawyers and judges. “If bad claims come to courts, there is less time for other things, and so judges should — and I would hope they would — get appropriately incensed if Trump’s lawyers or any lawyers force them to spend time on rejected claims that never should have been filed in the first place.”
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Even worse, these lawyers’ public claims of election fraud, without any credible evidence to back them up, only serve to sabotage Americans’ confidence in the democratic system.
More than 1,500 lawyers — including law professors, retired judges, and former heads of bar associations — issued a public letter calling the actions of Giuliani and the other attorneys pushing these baseless claims “a disgrace.” The signees urged disciplinary bodies to investigate their actions, and bar associations to publicly condemn them.
“Giuliani’s aim is obvious: to fuel Mr. Trump’s campaign to delegitimize the outcome of the election,” the lawyers wrote in the letter, organized by the group Lawyers Defending American Democracy. “Attorneys take an oath to support the Constitution. Lawyers who lie to advance the partisan interest of a politician or any client dishonor the constitutional system they’ve sworn to uphold, the legal profession, and themselves.”
All 50 states and the District of Columbia have ethical rules prohibiting the filing of baseless lawsuits. The rules are derived from the American Bar Association’s model code, which states: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”
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In addition, Rule 11 of the Federal Rules of Civil Procedure allows courts to impose disciplinary sanctions against attorneys who file federal claims that are not “warranted by existing law or by a nonfrivolous argument” or without “evidentiary support.” Most state courts have similar provisions, and sanctions range from striking the offending pleadings to imposing monetary sanctions.
And though judges cannot issue disbarment orders on their own, court-ordered sanctions can provide a basis for state disciplinary boards to take action that could include suspension, censure, or disbarment, Gillers said.
“Disciplinary committees are not really equipped to review the merits of litigation in various courts, and they have enough to do with their limited budgets chasing down lawyers who are crooks,” Gillers said. “So they won’t go after this unless a judge were to make a finding that a filing was frivolous.”
It’s not as if judges don’t see these cases as the cynical PR stunts that they are. Another federal judge, ruling against Trump in a different case this week, wrote that the “lawsuit seems to be less about achieving the relief Plaintiffs seek . . . and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government.” But they’ve held back from any more formal reprimand.
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With Rule 11 sanctions at their disposal, federal judges have the most power to act, and they should exercise it — setting the example for state judges to follow suit, and empowering attorney disciplinary authorities to launch their own probes to hold these lawyers accountable for the damage they have caused.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
