Powell blasts sanction hearing, defends suit to overturn Michigan vote

Craig Mauger
The Detroit News

Sidney Powell, one of the most vocal figures in the push to overturn the 2020 election, stood by her efforts Monday during a contentious and unusual six-hour hearing in which a Detroit federal judge repeatedly poked holes in her team's claims.

U.S. District Judge Linda Parker labeled elements of the unsuccessful lawsuit to have Donald Trump named Michigan's winner "fantastical," "obviously questionable" and "layers of hearsay." Parker also said lawyers have a responsibility to investigate assertions they present.

Monday's hearing featured the rare occurrence of legal advocates being questioned about their moves to discredit a presidential election with possible penalties hanging over their heads. 

Facing potential financial sanctions, Powell refused to relent. She said "the duty of lawyers" was to raise "difficult and even unpopular issues."

"We have practiced law with the highest standards," Powell said. "We would file the same complaints again. We welcome an opportunity to actually prove our case. No court has ever given us that opportunity."

Attorney Sidney Powell speaks during a news conference about lawsuits contesting the results of the presidential election at the Republican National Committee headquarters in Washington on Nov. 19, 2020.

During Monday's sanction hearing, Powell said she had practiced law for 43 years and “never witnessed a proceeding like this.” Powell also criticized David Fink, the attorney for the city of Detroit, who is among the individuals seeking penalties for those who attempted to reverse the election, and the proceeding itself.

"This is one of the proceedings that leave the American public with no confidence either in our election system or in our judicial system," Powell said.

Fink, representing Michigan's largest city, drew direct connections between the Michigan lawsuit and the Jan. 6 insurrection at the U.S. Capitol. "Because of the lies spread in this courtroom, not only did people die on Jan. 6, but many people throughout the world … came to doubt the strength of democratic institutions in this country," Fink said Monday.

The hearing was lively throughout with the court's reporter repeatedly asking participants not to talk over one another and Parker pressing the Republican lawyers on whether they personally examined unsubstantiated claims of voter fraud in Michigan before attempting to use them to overturn the state's election. The judge asked the attorneys if some of their assertions "should have been obviously questionable."

“There is a responsibility, there is a duty that counsel has to ensure that when you’re submitting a sworn statement in support of your case … that you have reviewed it, that you have done some minimal due diligence. And that is what I am getting at," said Parker, an appointee of former President Barack Obama.

Parker's decision on whether to sanction the attorneys is still likely weeks away. Court rules allow for sanctions when attorneys submit frivolous claims or arguments without evidentiary support. For Powell and other lawyers involved in the case, the stakes are potentially high, said Kenneth Mogill, a Michigan attorney and legal ethics expert.

If they are barred from practicing in Michigan's Eastern District, other jurisdictions with reciprocal policies would likely follow suit. "There’s a very real risk to them," said Mogill, past chairman of the State Bar of Michigan's ethics committee.

Latest in 7-month fight

The hearing was the latest highlight in a seven-month legal fight that began the day before Thanksgiving when six Republicans filed a lawsuit in Michigan's Eastern District. Nine lawyers, including national conservative figures Powell and Lin Wood of Georgia, have been involved in the attempt to reverse the election's result.

All of the nine lawyers appeared in a video conference hearing Monday. 

Democrat Joe Biden beat the GOP incumbent by 154,000 votes, or 3 percentage points, in Michigan. A report by the GOP-controlled state Senate, dozens of court rulings, bipartisan boards of canvassers and audits have reinforced the outcome.

Michigan Attorney General Dana Nessel, Wayne County voter Robert Davis and the city of Detroit have all asked Parker to levy sanctions, including financial penalties, against the attorneys who represented the six Republicans.

"The conduct of plaintiffs’ counsel in knowingly asserting false and frivolous claims while seeking relief with massive implications for our democracy warrants the strongest possible disciplinary action," Detroit's legal team wrote in a January motion.

Parker forced the pro-Trump attorneys to provide more information on claims that were part of dozens of affidavits from individuals who purportedly saw wrongdoing in the election.

One affidavit cited in the case was from Jessica Connarn, an attorney who was at the TCF Center, where Detroit's absentee ballots were counted. It said "an election poll worker told her (Connarn) that he 'was being told to change the date on ballots.'" Parker described it as "layers of hearsay."

The judge mentioned another affidavit from Articia Bomer who was also at TCF Center. Bomer said she believed some "workers were changing votes." Parker asked if any of the attorneys inquired if Bomer actually saw people change votes. None of the attorneys responded.

"Let the record reflect that no one made the inquiry," Parker said.

Attorneys defend actions

The attorneys attempted to defend their actions, saying they had presented more than 900 pages of evidence and turned to the courts to intervene in an election where their plaintiffs believed there was fraud.

"The Soviets had regular voting. Even Hugo Chavez let you vote for him as many times as you wanted," said Donald Campbell, the lawyer who represented the pro-Trump attorneys. "That's not uniquely American. What's uniquely American is the ability to challenge it."

Powell noted the number of pages submitted as proof of doing what she described as "extraordinary" due diligence. Parker responded that "volume" doesn't equate to "legitimacy."

One of the other attorneys, Julia Haller, who practices in Washington, D.C., said the affidavits in question were in some instances sworn statements submitted as part of other cases. They weren't included in the Michigan suit in bad faith, Haller said.

"My understanding is for sanctions, which I believe is why we’re here, we’re supposed to be talking about bad faith," Haller said. "I am simply at a loss.”

Wood tried to distance himself from the case, saying he wasn't aware of his involvement until he read a media report about the potential sanctions he faced in Michigan.

"I did not review any of the documents with respect to the complaint," Wood said. "My name was placed on there. But I had no involvement.”

Wood said he had offered to help Powell as a trial attorney in the election cases but didn't believe he specifically gave her permission to sign his name as one of the lawyers on the case.

“I can’t imagine that I would have put his name on any pleading without understanding that he had given me permission to do that," Powell said at one point.

However, Wood's comments were countered by a February affidavit signed by another attorney in the case, Gregory Rohl. Rohl said he had initially been contacted by an associate to participate in litigation about voter fraud in Michigan "spearheaded by Sidney Powell and Lin Wood."

Unusual circumstances

While judges considering sanctioning lawyers for frivolous claims is not unusual, the important circumstances of the election case, which sought to overturn a presidential vote, are, legal experts said.

The normal standard is that lawyers need to make a reasonable inquiry into the applicable laws and facts involved in their arguments, said Mogill, the Michigan-based attorney who's also been an adjunct professor at Wayne State University Law School.

Christopher Thomas, Michigan's longtime former elections director, tweeted that "for too long" post-election cases had been "populated with blatant untruths masquerading as facts."

"No one ever looks back once all shouting is over to hold lawyers accountable — until now!" Thomas said.

In a statement after the hearing, Nessel said it remained clear the attorneys who sought to overturn the election "refuse to recognize the damage they've done by continuing to pursue and defend this lawsuit."

"There is a big difference between responsibly advocating for a client and recklessly leveraging legal authority to perpetuate meritless arguments," the attorney general said. "As attorneys, we must uphold the oath we took to support the Constitution — not abuse it. I appreciate Judge Parker's diligence in handling our motion and remain confident our request for sanctions will be granted."

How election case started

The original lawsuit focused heavily on murky claims about election tabulation software and analyses that attempted to call into question Michigan's result. The filing also tried to use human errors by election workers in northern Michigan's Antrim County to question equipment in other areas of the state.

But many pieces of evidence presented in the case were questionable, including an affidavit from an expert named Russell Ramsland, who claimed there were multiple municipalities in Michigan with more than 100% turnout. In fact, there weren't.

Ramsland said there was 139% participation in Detroit, a figure later cited by Trump himself. The actual turnout in Detroit was 51%, according to the official results tallied by the Detroit City Clerk's Office.

Parker asked who on the legal team had talked with Ramsland. Powell and attorney Howard Kleinhendler of New Yorkboth said they had.

“I spoke with him, and I was comfortable, your honor, that what we were putting before the court was true and correct,” Kleinhendler said.

Parker rejected the original challenge on Dec. 7, saying the suit seemed "less about achieving the relief" the GOP plaintiffs sought and "more about the impact of their allegations on people’s faith in the democratic process and their trust in our government."

U.S. District Judge Linda Parker

The plaintiffs were seeking judicial action that was "stunning in its scope and breathtaking in its reach," the judge said. 

"If granted, the relief would disenfranchise the votes of the more than 5.5 million Michigan citizens who, with dignity, hope, and a promise of a voice, participated in the 2020 general election," Parker said. 

Lawyers for Detroit and the state argued the court should impose penalties to discourage similar litigation in the future. The attorneys for the city of Detroit asked the court to refer the Republicans' counsel for disbarment proceedings, impose monetary sanctions, award legal fees to the city and require the plaintiffs themselves to post a bond before filing a suit in the future.

Nessel, Michigan's Democratic attorney general, asked the judge to award attorneys' fees amounting to $11,071 to the state, contending that the Republicans' lawyers "pursued legal claims that they knew or should have known were frivolous."

In February, Stefanie Lambert Junttila, a Michigan attorney working with the GOP plaintiffs, countered that the claims at the center of the case were "supported by hundreds of factual and expert affidavits, as well as substantial documentation." She has also argued that Nessel's office had attempted to "chill free speech" in the push for sanctions.

"This litigation abuse is contrary to the spirit of the Constitution and the First Amendment — in addition to a bold lack of professional conduct toward opposing counsel," Lambert Junttila wrote.

Powell is the most well-known name among the attorneys facing potential sanctions in Michigan. She appeared with Trump's lawyer, Rudy Giuliani, at a press conference in November before the president's legal team distanced itself from her.

She has been involved in failed election challenges in multiple swing states, describing her legal effort as releasing the "kraken."

cmauger@detroitnews.com