Highlights of
Opinion and Order, by Honorable Linda V. Parker, Timothy King, et al. vs. Gretchen Whitmer, et al., Civil Case No. 20-13134, August 25, 20211. At the July 12 hearing, Wood maintained that the Court lacks jurisdiction to sanction him because he played no role in drafting the Complaint, did not read any of the documents with respect to the Complaint, was not aware of the affidavits attached to it, and did not give permission for his name to be specifically included in this action. When the Court asked Wood if he gave permission to have his name included on the pleadings or briefs, Wood answered: I do not specifically recall being asked about the Michigan complaint, but I had generally indicated to Sidney Powell that if she needed a, quote/unquote, trial lawyer that I would certainly be willing and available to help her.
2. Wood then denied being served with the motion for sanctions and stated that he was present only at the hearing because the Court required him to be there. According to Wood, he only discovered that he had been included as counsel for Plaintiffs in this matter when he saw a newspaper article about the sanctions motion…Wood is not credible…. Notably, while Wood stated at the July 12 hearing that he only learned about the motions seeking sanctions against him when he read about it in a newspaper article, Wood suggests in his supplemental brief that he in fact learned of his purported involvement in the lawsuit when he received a call from one of the attorneys in this matter in mid- to late-June 2021, alerting him to the Court’s order requiring him to appear at the hearing on the sanctions motions.… He claims that he was never served with the City’s motion for sanctions; however, counsel for the City represents that the motion was sent to Wood via e-mail and regular mail…. Wood asserts in his supplemental brief that he “and his legal assistant have performed a diligent search of all email correspondence as well as U.S. mail at Mr. Wood’s Atlanta office and elsewhere. They have turned up no evidence to indicate they were provided with any Rule 11 notice prior to the filing of the motion.” Yet no affidavit is offered from Wood or his legal assistant to attest to these assertions. And notably, the address listed for Wood on the filings in this matter (and thus where the City’s attorneys mailed items to him) is a post office box, not his firm’s address.… Wood’s social media postings undermine his current assertions, as do his statements in other court proceedings. As discussed during the July 12 hearing, on the day the City e-mailed copies of the Safe Harbor Letter and Safe Harbor Motion to Plaintiffs’ counsel, Wood tweeted a link to an article containing a copy of the motion, stating “[w]hen you get falsely accused by the likes of David Fink and Mark Elias . . . in a propaganda rag like Law & Crime, you smile because you know you are over the target and the enemy is runningscared [sic]!”… On January 5, 2021, the day the City filed the motion, Wood tweeted a link to an article with the motion, stating that it was “unfair” for the City to seek sanctions against him…prior to the July 12 hearing, Wood took credit for filing this lawsuit….Notably, Rohl stated under oath that Wood, along with Powell, “spearheaded” this lawsuit. Though the Court hesitates to rely too much on the assertions of any of Plaintiffs’ attorneys because their positions—as counsel for the City aptly describes—have been like “[s]hifting [s]ands[,]” the Court notes that Rohl’s sworn affidavit was attached to a supplemental brief filed by Plaintiffs’ counsel in response to the City’s motion for sanctions. No member of Plaintiffs’ legal team objected to any part of Rohl’s affidavit….With each new brief filed and opportunity to argue before the Court, Plaintiffs’ attorneys raise a new argument for why they were not adequately served with the City’s Safe Harbor Letter and Safe Harbor Motion. First, in their original response to the motion, Plaintiffs’ counsel argued only that the notice served upon them was deficient because it was not accompanied by the City’s more detailed brief. Then, at the July 12 motion hearing, Wood and Newman suddenly claimed that they had not been served at all with the City’s safe harbor materials. In the supplemental brief filed by Campbell on behalf of Plaintiffs’ counsel Hagerstrom, Haller, Johnson, Kleinhendler, Powell, and Rohl, counsel insinuates that the Rule 11 motion was not properly served pursuant to Rule 5 of the Federal Rules of Civil Procedure, as required under Rule 11(c)(2). (“It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”) In his next filing on behalf of Hagerstrom, Haller, Johnson, Kleinhendler, Powell, and Rohl, Campbell raises two new arguments: (i) the City did not mail a copy of the safe harbor materials to the correct address for Johnson, and (ii) in a footnote of the safe harbor motion, concurrence was only sought from Powell. Newman picked up the same refrain about her address in her supplemental brief. Wood said nothing in his supplemental brief to challenge the address where he was served; however, in his response to the City’s supplemental brief, he claimed for the first time that the zip code used by the City when mailing the safe harbor materials to him was incorrect. However, the addresses used by the City for each of these attorneys, including Wood’s zip code, were the exact addresses provided by Plaintiffs in their filings. The belated argument regarding footnote 1 of the City’s Safe Harbor Motion is frivolous as the Safe Harbor Letter was addressed to all counsel.
3. When the Court turned to Powell and asked whether she told Wood his name was being placed on the pleading, Powell first answered: My view, your honor, is that I did specifically ask Mr. Wood for his permission. 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 then suggested that perhaps there was “a misunderstanding” between her and Wood….The existence of a misunderstanding seems improbable given that several similar lawsuits seeking to overturn the presidential election results were filed in Georgia, Wisconsin, and Arizona, each bearing the same “Of Counsel” listing for Wood as appears here.
4. Plaintiffs expressly acknowledged in their petition for writ of certiorari to the Supreme Court that “[o]nce the electoral votes are cast, subsequent relief would be pointless,” and “the petition would be moot.”… “Yet, that date came and went with no acknowledgement by Plaintiffs and their counsel to Defendants or this Court,”… on December 14, “three [] [] Plaintiffs were, in their opinion, properly elected as electors” and, Campbell further explained, “[t]hat changed things…Plaintiffs’ attorneys maintain that this lawsuit was no longer moot after December 14 because three Plaintiffs subjectively believed that they had become electors. The attorneys cite no authority supporting the notion that an individual’s “[personal] opinion” that he or she is an elector is sufficient to support the legal position that the individual is in fact an elector. Of course, such a belief is contrary to how electors are appointed in Michigan ….Plaintiffs’ attorneys fail to provide a rational explanation for why this event breathed life into this action…They did not tell this Court that the case would no longer be moot after December 8, despite telling this Court the exact opposite when filing this lawsuit on November 25. And they did not tell the Supreme Court that the case would no longer be moot after December 14, despite telling that Court the exact opposite on December 11. The fact that it was never shared suggests that counsel’s argument as to why the case had to be pursued after December 14 is contrived….Plaintiffs conceded that their claims were moot after December 14. Yet, in the month that followed, Plaintiffs refused to voluntarily dismiss their claims…Notably when the State Defendants sought concurrence in their Motion to Dismiss on December 22, Plaintiffs’ counsel responded that they were “not in a position to respond to [the State Defendants’] request until [the] appeals [before the Sixth Circuit and United States Supreme Court] are decided,” and noted that “[they] do not believe the district court has jurisdiction to consider [the State Defendants’] motion while the case is on appeal.” (Id.) Of course, because neither this Court, the Sixth Circuit, nor the United States Supreme Court had entered a stay—and Plaintiff had not moved for one in any court—this Court retained its jurisdiction to consider the Motion to Dismiss. (“[A]n appeal from an order granting or denying a preliminary injunction does not divest the district court of jurisdiction to proceed with the action on the merits.”) And for some reason, Plaintiffs eventually voluntarily dismissed this lawsuit while it remained on appeal in the Sixth Circuit and Supreme Court, even though they previously refused to concur as to Defendants’ motions to dismiss because it was on appeal in those courts.
5. At the July 12 hearing, Plaintiffs’ counsel pointed for the first time to the Supreme Court’s decision in United States v. Throckmorton, 98 U.S. 61 (1878), as supporting this Court’s authority to take—it seems the attorneys are suggesting—any equitable action in connection with the 2020 presidential election. Apparently Throckmorton’s quotation of the maxim “fraud vitiates everything” is a refrain that has been oft-repeated on social media by those who question the results of the 2020 presidential election and believe Former President Trump should be declared the winner…. (listing Twitter posts that state, among other things, that (i) “[A]ny fraud located . . . constitutes nullification of the presidential contest. This means, Trump wins by default because of the vote switching by Dominion Machines. Look up Throckmorton 1878.”; (ii) “[F]raud will DISQUALIFY Biden completely and mean that Trump will be the winner of all 50 states . . . . There can be no other outcome. ‘Fraud vitiates everything’ US v. Throckmorton . . . .”; (iii) “[F]raud vitities everything. Meaning one state commits voter fraud they all go down! So DJTrump wins the 2020 election.”; and (iv) “Fraud vitiates everything it touches. [THROCKMORTON] . . . . Thus the Biden/Harris ‘swearing in’ is negated, quashed annulled, invalidated, revoked and abrogated.”).) … the case relates to a nineteenth-century land grant and has nothing to do with election law… Of course, the Supreme Court did not hold in Throckmorton that “fraud vitiates everything”; rather, it merely quoted this phrase from a treatise and then held that, in fact, fraud did not justify overturning a federal district court’s 20-year-old decree.
6. To support the allegation that Defendants violated Michigan election laws by accepting “unsecured ballots . . . without any chain of custody,” the Amended Complaint states that Whitney Meyers “observed passengers in cars dropping off more ballots than there were people in the car.” But when the Court asked Plaintiffs’ counsel whether individuals other than the voter can drop off a ballot in Michigan, Campbell answered in the affirmative…. Plaintiffs’ counsel knew or should have known that this conduct did not violate existing state law.
7. The Amended Complaint further claims that Michigan election laws were violated because ballots that lacked postmarks were counted. … When one searches through the unindexed affidavits attached as Exhibit 3 to Plaintiffs’ pleading and eventually locates these affidavits, however, one finds that none of the affiants state that ballots without postmarks were counted. … But when the Court asked Plaintiffs’ attorneys whether Michigan absentee ballots must be received through U.S. mail—and therefore postmarked—to be counted, counsel went on about not being able to “rely on the Secretary of State’s guidance.”… when the City’s counsel stated that ballots are not required to be mailed or postmarked in Michigan—as they “are often handed in by hand”; “[via] boxes in front of clerk’s offices by hand”; and sometimes “right across the desk in the clerk’s office” (id. at Pg ID 5470)—Plaintiffs’ counsel did not object to or refute this recitation of the law.
8. To support the allegation that Defendants “count[ed] ineligible ballots—and in many cases—multiple times,” in violation of Michigan election law, the Amended Complaint cites to several affidavits in which the affiants state that batches of ballots were repeatedly run through the vote tabulation machines. When the Court asked whether Plaintiffs’ counsel inquired as to why a stack of ballots might be run through tabulation machines more than once, Plaintiffs’ counsel did not answer the Court’s question and instead proclaimed that “ballots are not supposed to be put through more than once. Absolutely not. That would violate Michigan law.” But bafflingly, Plaintiffs’ counsel did not offer a cite to the law violated, and counsel did not identify such a law in the Amended Complaint either. However, the affidavit of Christopher Thomas, Senior Advisor to the Detroit City Clerk, filed in Costantino (“Thomas Affidavit”), explained that “ballots are often fed through the high-speed reader more than once” “as a routine part of the tabulation process.” And he detailed a myriad of reasons why this may be necessary, including “if there is a jam in the reader” or “if there is a problem ballot (e.g., stains, tears, stray markings, . . . etc.) in a stack.”41 … Thomas goes on to explain: “To an untrained observer[,] it may appear that the ballot is being counted twice, however, the election worker will have cancelled the appropriate count on the computer screen. Any human error in the process would be identified during the canvass. If not, the number of voters at the absent voter counting board would be dramatically different than the number of counted votes.”
9. Kleinhendler told the Court that it was “completely irrelevant” whether the conduct Plaintiffs claimed was violative of Michigan law was actually unlawful. This is because, counsel argued, the conduct “raise[d] a suspicion” and what was significant was the mere chance for misfeasance to occur. But litigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation.
10. In light of Plaintiffs’ allegation that Defendants violated the Michigan Election Code by permitting ballots to arrive at the TCF Center “not in sealed ballot boxes,” “without any chain of custody,” and “without envelopes” and because the Amended Complaint does not identify a provision in the Michigan Election Code prohibiting the actions about which Plaintiffs complain, the Court asked Plaintiffs’ attorneys at the July 12 hearing about their understanding regarding Michigan’s ballot-bin requirements. Counsel’s response: “[W]e do not purport to be experts in Michigan’s process,” and, they argued, the affidavit that supported this allegation—that of Daniel Gustafson (“Gustafson Affidavit”)—was copied and pasted from Costantino. These evasive and non-responsive answers to the Court’s direct questions amount to an admission that Plaintiffs’ counsel did not bother to find out what the Michigan Election Code requires, and whether the acts alleged to constitute violations of the Michigan Election Code were actually prohibited….In Costantino—which was decided approximately two weeks before Plaintiffs filed the instant lawsuit—Wayne County Circuit Court Judge Timothy M. Kenny credited the Thomas Affidavit —thereby informing Plaintiffs’ counsel that what Gustafson observed did not in fact violate Michigan Election Code, or at a minimum putting counsel on notice that there was a duty to inquire further. And even if Plaintiffs’ counsel lacked expertise as to the Michigan Election Code, they undoubtedly were required to be familiar enough with its provisions to confirm that the conduct they asserted violated that code in fact did.
11. Second, Plaintiffs’ counsel argued that permitting ballots to be handled and transported in the manner described in the Gustafson Affidavit “raises a suspicion” and “[w]hether [such acts are] required under Michigan law or not[] [is] completely irrelevant.” But the Amended Complaint repeatedly asserts that Defendants violated the Michigan Election Code and Plaintiffs’ state law, Equal Protection, Due Process, and Electors and Elections Clauses claims are based on these alleged violations. And, again, a mere “suspicion” is not enough—this is especially so when neither the litigant nor his or her counsel has bothered to figure out exactly what the law is or what it permits.
12. Plaintiffs’ attorneys argue that they genuinely believed the factual allegations in this lawsuit, and otherwise filed this suit and the accompanying documents in good faith….Of course, an “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions…no reasonable attorney would accept the assertions in those reports and affidavits as fact or as support for factual allegations in a pleading when based on such speculation and conjecture. And no reasonable attorney would repeat them as fact or as support for a factual allegation without conducting the due diligence inquiry required under Rule 11(b)…. Plaintiffs’ attorneys further contend that they did more than was required by attaching this “evidence” to their pleadings. True, Plaintiffs were not required to attach evidence to support their factual allegations; but, they did. Therefore, they had an obligation to scrutinize the contents and doing so would have revealed that key factual assertions made in their pleading lacked evidentiary support.
13. Plaintiffs’ attorneys complain that the Court focused on only a limited number of affidavits at the July 12 motion hearing, when more were laced throughout their 960-page Amended Complaint….all of the affidavits the Court references in this Opinion & Order’s Rule 11(b)(3) analysis were in fact the only pieces of evidence offered to support the relevant factual allegation.
14. Plaintiffs’ counsel failed to present any evidence to support their allegation of “illegal double voting.” To support this factual assertion, Plaintiffs pointed to a single piece of “evidence”: the affidavit of Jessy Jacob (“Jacob Affidavit”). That affidavit states in part: “I observed a large number of people who came to the satellite location to vote in-person, but they had already applied for an absentee ballot.”… Jacob does claim that people came to vote in person at the satellite location where she worked who had already applied for an absentee ballot, and that those individuals voted without returning the mailed absentee ballot or signing an affidavit that the ballot had been lost. Michigan law makes it a felony to vote both in person and absentee. Of course, Jacob does not state that these individuals voted in person and absentee. As such, her affidavit in fact does not plausibly support “illegal double voting.” … “An absent voter may vote in person within his or her precinct at an election, notwithstanding that he or she applies for an absent voter ballot and the ballot is mailed or otherwise delivered to the absent voter by the clerk” if, “[b]efore voting in person,” “the absent voter [] return[s] the absent voter ballot.”… Inferences must be reasonable and come from facts proven, not speculation or conjecture.
15. To support the allegation that “unsecured ballots arrived at the TCF Center loading garage, not in sealed ballot boxes, without any chain of custody, and without envelopes, after the 8:00 PM Election Day deadline,” Plaintiffs quote the affidavit of Matt Ciantar (“Ciantar Affidavit”), which is a masterclass on making conjectural leaps and bounds:... What I witnessed and considered that what could be in those bags could be ballots going to the TCF center or coming from the TCF center . . . . When the Court asked Plaintiffs’ attorneys how any of them, as officers of the court, could present this affidavit as factual support of anything alleged in their pleadings and Motion for Injunctive Relief, counsel emphatically argued that “[t]he witness is setting forth exactly what he observed and [the] information that he bases it on. . . . He saw these plastic bags . . . . It is a true affidavit.” The Court accepts that the affidavit is true in that Ciantar memorialized what he saw at the time. But the Court cannot find it reasonable to assert, as Plaintiffs’ attorneys do, that this “shows fraud.”… Absolutely nothing about this affidavit supports the allegation that ballots were delivered to the TCF Center after the Election Day deadline…a document containing the lengthy musings of one dog-walker after encountering a “smiling, laughing” couple delivering bags of unidentified items in no way serves as evidence that state laws were violated or that fraud occurred….Plaintiffs also reference the Gustafson and Meyers Affidavits to support this allegation. For the reasons discussed above, these two affidavits are of little to no evidentiary value.
16. Plaintiffs’ counsel further asserted that “we don’t typically rewrite what an affiant says.” That is good. But, pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation.
17. To support the allegation that Defendants “fraudulently add[ed] tens of thousands of new ballots . . . to the [Qualified Voter File] . . . on November 4, 2020, all or nearly all of which were votes for Joe Biden,” Plaintiffs quote the affidavit of Melissa Carone (“Carone Affidavit”), which describes “facts” that demonstrate no misconduct or malfeasance, and amount to no more than strained and disjointed innuendo of something sinister:… There was [sic] two vans that pulled into the garage of the counting room, one on day shift and one on night shift. These vans were apparently bringing food into the building . . . . I never saw any food coming out of these vans, coincidently it was announced on the news that Michigan had discovered over 100,000 more ballots—not even two hours after the last van left…The Amended Complaint calls this an “illegal vote dump.”… But nothing described by Carone connects the vans to any ballots; nothing connects the illusory ballots to President Biden; and nothing connects the illusory votes for President Biden to the 100,000 ballots “coincidently” announced on the news as “discovered” in Michigan. …And nothing in the affidavit enlightens its reader as to what is meant by “discovered.” …Yet not a single member of Plaintiffs’ legal team spoke with Carone to fill in these speculation-filled gaps before using her affidavit to support the allegation that tens of thousands of votes for President Biden were fraudulently added…. Without engaging in such an inquiry—much less a reasonable one—counsel’s affirmative decision to label the 100,000 ballots discussed on the news—or the illusory ballots theoretically removed from two vans—an “illegal vote dump” serves as a quintessential example of guesswork laced with bad faith.… Kleinhendler emphasized during the hearing that Carone “publicly testified . . . in Michigan about her findings.” It is nonsensical to suggest that supporting a key factual allegation with nothing more than speculation is justified because that speculation was repeated publicly.… Plaintiffs also reference the affidavit of Andrew Sitto (“Sitto Affidavit”) and Robert Cushman (“Cushman Affidavit”) to support this allegation. But as Judge Kenny concluded in Costantino, Sitto’s affidavit is “rife with speculation and guess-work about sinister motives” and he “knew little about the process of the absentee voter counting board activity.” Indeed, the evidentiary value of the Sitto Affidavit is questionable at best. And while the Court does not discuss the Cushman Affidavit in this Opinion and Order, the Court notes that Plaintiffs describe the Carone Affidavit as “the most probative evidence” of the factual allegation at bar.
18. when the Court asked Plaintiffs’ counsel whether an affiant’s observation of a self-described “coincidence” serves as evidentiary support for the allegation that an “illegal vote dump” occurred, Plaintiffs’ counsel appeared to say that it was okay in this case because Ramsland “relied on [the Carone Affidavit] for . . . his statistical analysis” and “an expert can rely on hearsay.” But the problem with the Carone Affidavit does not concern hearsay—it concerns conjecture. And surely Plaintiffs’ attorneys cannot fail to reasonably inquire into an affiant’s speculative statements and thereafter escape their duty to “stop-and-think” before making factual allegations based on the statements, simply because their expert did the same.
19. To support the allegation that Defendants permitted “election workers [to] change votes for Trump and other Republican candidates,” Plaintiffs point to one thing—namely, Articia Bomer’s affidavit (“Bomer Affidavit”): I observed a station where election workers were working on scanned ballots that had issues that needed to be manually corrected. I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates….When the Court asked whether an affiant’s belief that something occurred constitutes evidentiary support for that occurrence, Plaintiffs’ counsel stated: “[I]f you see it, that would certainly help you to form a belief.” The Court then asked: “[D]id anyone inquire as to whether or not [] Bomer actually saw someone change a vote?” The Court was met with silence.… an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred.
20. When the Court asked whether Plaintiffs’ counsel inquired as to the affidavits copied and pasted from the other cases, Plaintiffs’ counsel dipped and dodged the question and did not disclaim the City’s counsel’s assertions that they did not….“[O]ther lawyers saw it” and “[t]hey believed it to be appropriate for submission to the Court in that circumstance,” Plaintiffs’ attorneys argued. …“[Y]ou’ve got to be able to trust when something has been submitted by counsel because of the oath that we take” knowing that “everybody else within the profession” therefore believes that the attorney’s submission “should have tremendous value.”… This is not okay….“Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”
21. Powell argued that, even if the plaintiffs “attempt[] to impugn the various declarations as unreliable[] [or] attack the veracity or reliability of the various declarants,” “[l]awyers involved in fast-moving litigation concerning matters of transcendent public importance, who rely on sworn declarations, are entitled to no less protection” than “[j]ournalists [who] usually repeat statements from sources (usually unsworn, often anonymous) on whom they rely for their stories, and sometimes those statements turn out not to be true.” “Journalists”—like attorneys, Powell argued—“must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical.”… Attorneys are not journalists. It therefore comes as no surprise that Plaintiffs’ attorneys fail to cite a single case suggesting that the two professions share comparable duties and responsibilities.
22. Plaintiffs’ counsel attached Ramsland’s affidavit to their pleadings to support the assertion that hundreds of thousands of illegal votes were injected into Michigan’s election for President. In his affidavit, Ramsland refers to several statistical “red flag[s],” including: (i) reports of 6,000 votes in Antrim County being switched from Former President Trump to President Biden and (ii) 643 precincts in Michigan with voter turn-out exceeding 80% (e.g., 460.51% in Zeeland Charter Township, 215.21% in Grout Township, Gladwin County, and 139.29% in Detroit). However, the State issued a bulletin well before this lawsuit was filed explaining the user error that led to the miscount in Antrim County’s unofficial results, which had been “quickly identified and corrected.” And official election results for Michigan—reporting voter turnout rates vastly lower than the numbers in Ramsland’s affidavit—were published and readily available shortly after the election and well-before his report was filed here. A reasonable attorney, seeing Ramsland’s striking original figures, would inquire into their accuracy or at least question their source. Even the most basic internet inquiry would have alerted Plaintiffs’ counsel to the wildly inaccurate assertions in Ramsland’s affidavit….Ramsland represented data as being from Michigan when, in fact, the townships listed were in Minnesota. Moreover, it was widely publicized before Plaintiffs’ counsel offered Ramsland’s affidavit here that even for the Minnesota locations, Ramsland’s conclusions about over-votes was not supported by official data from the State.
23. Evidence of improper purpose can also be found in their decision to label as “eyewitness testimony” an affidavit that does not state that the affiant saw election workers manually changing votes, especially when opting not to even ask the affiant if she saw such a thing. And still, evidence of bad faith abounds.
24.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….Powell characterizes her statements and allegations as “vituperative, abusive and inexact” “political speech,” as well as “inherently prone to exaggeration and hyperbole.”… It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences. Although the First Amendment may allow Plaintiffs’ counsel to say what they desire on social media, in press conferences, or on television, federal courts are reserved for hearing genuine legal disputes which are well-grounded in fact and law.
25. The Court pauses to briefly discuss Plaintiffs’ attorneys’ attempt to cloak their conduct in this litigation under First Amendment protection….An attorney’s right to free speech while litigating an action “is extremely circumscribed.”… Attorneys “voluntarily agree[] to relinquish [their] rights to free expression in [] judicial proceeding[s]” and “voluntarily accept[] almost unconditional restraints on [their] personal speech rights” when before a court…. The Court drew Plaintiffs’ counsel’s attention to Mezibov at the motion hearing in response to their repeated refrain that the First Amendment protects them from any sanctions for their conduct in this litigation. Despite doing so and urging counsel to review the Sixth Circuit’s decision, Junttila continued to argue First Amendment protection in her supplemental brief—albeit in a more illogical and incoherent fashion.
26. Plaintiffs’ attorneys attempt to excuse their failure to objectively evaluate their “evidence” because “[they] are not the only individuals who viewed the[] affidavits [attached to their pleadings] as evidence of serious fraud.” They say Former President Trump “susp[ected]” it too, and “millions of [] Americans . . . believed that their president would not intentionally mislead them”. As officers of the court, Plaintiffs’ counsel had an obligation to do more than repeat opinions and beliefs, even if shared by millions. Something does not become plausible simply because it is repeated many times by many people. [This is a lesson that some of the darkest periods of history have taught us.]… Plaintiffs’ counsel did everything in their power to ensure that their bias—that the election was fraudulent, as proclaimed by Former President Trump—was confirmed….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.
27. Before the 2020 general election, Powell appears to have been certain that those who did not support Former President Trump already engaged in fraudulent illegal activity. On Election Day, Powell gave an interview during which she described “the many multifaceted efforts the democrats are making to steal the vote,” including “develop[ing] a computer system to alter votes electronically,” spreading the “COVID . . . apocalypse hoax,” and ensuring that “people . . . have not gotten their absentee ballots” even though “they’ve . . . request[ed] them three different times[] and been told they were cancelled.”… Plaintiffs’ attorneys waited until after votes were tallied to file this lawsuit, even though the record suggests that—well in advance of Election Day—they knew or should have known about the things of which they complained….This game of wait-and-see shows that counsel planned to challenge the legitimacy of the election if and only if Former President Trump lost. And if that happened, they would help foster a predetermined narrative making election fraud the culprit. These things—separately, but especially collectively—evince bad faith and improper purpose in bringing this suit.
28. Joshua Merritt is someone whose identity counsel redacted, referring to him only as “Spyder” or “Spider,” and who counsel identified in their pleadings and briefs as “a former electronic intelligence analyst with 305th Military Intelligence” and a “US Military Intelligence expert.” Yet, even after learning that Merritt never completed any intelligence analyst training program with the 305th Military Intelligence Battalion, Plaintiffs’ counsel remained silent as to this fact….Kleinhendler argued during the hearing that Merritt’s “expertise” is based on “his years and years of experience in cyber security as a confidential informant working for the United States Government” —not Merritt’s purported military intelligence training. Clearly this is dishonest. This was not the experience on which Plaintiffs’ attorneys premised Merritt’s expertise in their pleadings and Motion for Injunctive Relief, and Merritt never claims in his declaration that he has “years and years of experience in cyber security as a confidential informant working for the United States Government." … To the extent that Plaintiffs’ attorneys claim that an “affidavit” attached to their reply to the motion to seal includes this assertion, it does not. That “affidavit” is not signed by or associated with anyone, much less someone named Spyder, Spider, or Joshua Merritt. Instead, it was precisely Merritt’s experience as “an electronic intelligence analyst under 305th Military Intelligence” that Plaintiffs’ attorneys presented to convince the Court and the world that he is a reliable expert. Kleinhendler argued during the hearing, however, that he first learned about this inconsistency after the case was dismissed on January 14. “I had no reason to doubt,” Kleinhendler explained. This also is dishonest. First, the City attached an article from the Washington Post to its January 5 motion for sanctions, which at least put Plaintiffs’ counsel on notice that Merritt lacked the expertise they claimed. Yet curiously, during the hearing, when the Court asked if “anyone ask[ed] [Plaintiffs’ counsel] if, or suggest[ed] to [them] that, [Merritt] was not a military intelligence expert,” Kleinhendler, Haller, and Powell said “no” and all other counsel agreed by remaining silent….Kleinhendler further argued that Plaintiffs’ counsel’s assertion that Merritt was a U.S. military intelligence expert was “not technically false” or “technically [] wrong” because “[h]e did spend, from [Kleinhendler’s] understanding, seven months training with the 305th.” The Court is unconvinced by this effort to mischaracterize. Kleinhendler himself admitted that labeling Merritt as a U.S. military intelligence expert is “not [] the full story.”… he nonetheless admits that “[h]ad [he] known in advance [of the January 14 dismissal] that [Merritt] had transferred out, [he] would have made [it] clear.” But this is yet another misrepresentation. As detailed above, by January 5, Kleinhendler knew Merritt never completed the training that formed the basis of his purported expertise. Yet, Kleinhendler did not “make it clear.” Co-counsel for Plaintiffs also had reason to question Merritt’s expertise by no later than January 5. Yet, they remained silent too. Ultimately, Plaintiffs’ counsel’s decision to not make clear “the full story” about Merritt not completing military intelligence training was for the improper purpose of bolstering their star witness’ expertise and misleading the Court, opposing counsel, and the world into believing that Merritt was something that he was not.
29. Plaintiffs’ counsel and their counsel have suggested that this Court’s handling of these proceedings and any resultant decision can be expected based on the President who appointed the undersigned. This is part of a continuing narrative fostered by Plaintiffs’ counsel to undermine the institutions that uphold our democracy. It represents the same bad faith that is at the base of this litigation. To be clear, all federal judges, regardless of which President appoints them, take oaths affirming that they will “faithfully and impartially discharge” their duties, 28 U.S.C. § 453, and uphold and protect the Constitution of the United States, 5 U.S.C. § 3331.
30. None of the allegations in the Amended Complaint contain “specific[ ]” reference to the need for additional factual support from investigation or discovery. And Plaintiffs plead on “information and belief” in only three of the Amended Complaint’s 233-paragraphs. One of those paragraphs does not contain a fact asserted upon information and belief but seems to be concluding that facts asserted elsewhere reflect, upon information and belief, Defendants’ failure to follow proper election protocol; another of those paragraphs relate to when a co-inventor of certain Dominion-related patents joined Dominion’s predecessor; and the other relates to Plaintiffs’ allegation that Defendants failed to post certain absentee ballot information before certain times on Election Day. Plaintiffs have not availed themselves of Rule 11’s allowance for claims that “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery,” except for arguably in the latter two instances.
31. Plaintiffs maintain that the City’s Rule 11 motion is procedurally defective because it seeks “both Rule 11 sanctions and . . . disbarment of attorneys and their referral to state bar associations for disciplinary action.” Plaintiffs note that Rule 11 motions “must be made separately from any other motion[.]” Plaintiffs’ argument is frivolous. The separate-motion requirement is designed only “to prevent [the sanctions request] from being tacked onto or buried in motions on the merits, such as motions to dismiss or for summary judgment.” The City’s request for referral and disbarment are merely the sanctions sought for Plaintiffs’ alleged Rule 11 violations. As indicated above, a “variety of possible sanctions” may be imposed for a Rule 11 violation, including those requested by the City.
32. And for these reasons, this lawsuit is not akin to Brown v. Board of Education, 347 U.S. 483 (1954), as Plaintiffs’ counsel, Powell, baselessly suggested during the July 12 hearing. Yes, attorneys may and should raise difficult and even unpopular issues to urge change in the law where change is needed. But unlike Plaintiffs’ attorneys here, then-attorney Thurgood Marshall had the requisite legal footing on which his clients’ claims were grounded in Brown, and the facts were not based on speculation and conjecture. Brown arose from an undeniable history during which Black Americans were treated as second-class citizens through legalized segregation in the schools of our country. In stark comparison, the present matter is built on fantastical claims and conspiracy theories.
