Rep. Louie Gohmert, along with the eleven Trump/Pence would-be electors from Arizona, sued Vice President Pence in a Texas federal court, seeking to (1) declare the Electoral Count Act unconstitutional, and (2) confer exclusive authority on Pence to recognize electors, which (3) would mean accepting the votes of the "alternative" slate of Republican electors from Arizona and perhaps other states. Others have addressed the merits of the legal claims. Here, I want to point out that the central factual predicate of the complaint is apparently untrue. The complaint alleges,
“The Arizona Electors have cast Arizona’s electoral votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature” (emphasis added).
As far as I can tell, the bolded allegation is a false statement of fact. Although the eleven Trump electors, who are also plaintiffs in the case, purported to cast votes for Trump/Pence on December 14, they had at most the support of 22 Arizona legislators (out of 90) who signed a purported “joint resolution,” which was manifestly not the endorsement of the Arizona Legislature (which appears not even to have been in session at the time). The assertion that the actual Arizona legislature endorsed the Republican slate is material to the Gohmert complaint, as it comprises the underlying factual basis for the claimed dispute over "which electoral votes may be counted." Without the so-called legislative endorsement, there could be no "competing slates of Republican and Democratic electors" for Pence to choose between.
This is exactly the sort of false statement that is covered by Rule 11 of the Federal Rules of Civil Procedure and Rule 3.3(a)(1) of the Rules of Professional Conduct. Rule 11 requires that “factual allegations have evidentiary support." Rule 3.3(a)(1) likewise prohibits making “a false statement of fact or law to a tribunal."
The complaint was signed by a member of the Texas bar. Also on the complaint were lawyers admitted to practice in New York and Washington, D.C. All three jurisdictions have adopted Rule 3.3(a)(1). Rule 11 is applicable to all pleadings in federal district court.
I have previously opposed the "weaponization" of lawyer disciplinary complaints such as the one brought by law professors against Kellyanne Conway. In this instance, however, the false statement was made in federal court pleadings rather than as political advocacy, which brings it much more squarely within Rule 11 and Rule 3.3(a)(1), both of which apply specifically to falsehoods in litigation.
NOTE: After writing this, but before posting, I came across a similar discussion in Derek Muller's Excess of Democracy blog, observing that a comparable false statement had been included in a SCOTUS brief in the Michigan litigation (submitted by three of the lawyers representing Gohmert, among others, with Sidney Powell as counsel of record).