In addition to my earlier blog post, I have now written an oped for The Hill about Louie Gohmert's lawsuit against Vice President Pence, seeking to have the electoral votes counted for Arizona's defeated Republican electors. In case you missed it, Gohmert and 11 defeated Arizona elector candidates allege that Pence has the sole power to seat any “competing slate of electors” he chooses, including self-proclaimed “winning slates" that have never been certified according to the law of their states. Under Gohmert’s theory of the 12th Amendment, Pence holds “all the prerogatives and rights to determine what electoral votes to count or to disregard” when Congress meets on January 6, meaning, of course, that he could just accept the votes of the Republican’s “alternative” slate from Arizona, and perhaps other swing states.
There were plenty of problems with the case, leading the trial judge to dismiss it for lack of standing less than twelve hours after Gohmert filed his brief, thus adding it to the other 60 or so losses for the Trump campaign. Gohmert, as expected, has filed an emergency appeal, seeking an expedited briefing schedule with a ruling by midnight Tuesday. Rather than a remand, which would be the usual remedy for a successful appeal, Gohmert is asking for "an interim order in the nature of a preliminary injunction," presumably affecting the conduct of the join congressional session on Wednesday. The Fifth Circuit, however, wasted no time, summarily affirming the trial court within hours, and without waiting waiting for Gohmert's brief.
Gohmert's case has now been rejected by four judges — Two Trump appointees and two Reagan appointees.
My concern, however, is not with the merits of the case, but rather with the central factual premise alleged in the complaint, which appears to be untrue. That raises questions about the attorneys’ responsibility for bringing the suit, which outlive the disposition of the case itself. Here is how I explained it in The Hill:
Paragraph 5 of the complaint states, “The [Republican] 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).
[T]he bolded passage is a false statement of fact. The 11 Trump electors evidently did meet at the state capitol on December 14, when they purportedly cast their votes for the Trump/Pence ticket, but their actions were not endorsed by the Arizona legislature. Instead, it appears that they had the support of only 22 Arizona legislators (out of 90), who signed a self-styled “joint resolution” calling on Congress to accept the “alternate 11 electoral votes . . . for Donald J. Trump.”
False statements of this sort violate both the Federal Rules of Civil Procedure and the Rules of Professional Conduct:
Lawyers can face sanctions under Rule 11 for making false statements in federal court pleadings, including “an order to pay a penalty into court” or to reimburse an opposing party’s attorney’s fees. Lawyer discipline under the Rules of Professional Conduct is handled by state authorities, with possible penalties ranging from reprimands to suspensions.
You can read the entire piece here.
If you believe that an attorney violated the Rules of Professional Conduct, perhaps you should file a formal complaint and see if authorities established to judge such issues agree with you. In the meantime, here’s what I wrote when the decision came down.
U.S. District Judge Jeremy D. Kernodle has tossed a law suit seeking to establish that a vice president has the power, under the Constitution, to reject the electoral votes submitted to Congress, with the ultimate goal in this case of establishing Donald Trump as the next president.
But since – as I predicted – the judge dismissed the suit because neither Rep. Louie Gohmert of Texas nor the other plaintiffs had legal standing, the court did not address the underlying issue of the scope of a vice president's power, if any, regarding electoral votes which are challenged.
In an earlier statement, I noted that Gohmert had no legal standing to initiate the law suit since he had not suffered the required "injury in fact" required by the Constitution.
I also pointed out the Pence's lawyers had argued that "Ironically, Representative Gohmert's position [regarding standing], if adopted by the Court, would actually deprive him of his opportunity as a Member of the House under the Electoral Count Act to raise objections to the counting of electoral votes, and then to debate and vote on them."
As Judge Kernodle explained, Gohmert "does not claim that he has deprived of something to which [he] personally [is] entitled," and does not allege a "loss of any private right, which would make the injury more concrete." Also, he cannot claim as an injury in fact something "which necessarily damages all Members of Congress."
With regard to naming the current Vice President as the defendant, the court noted that the injury alleged by the other plaintiffs, "is not fairly traceable to any act of the Vice President. Nor is it an injury likely to be redressed by a favorable decision here."
Thus these other plaintiffs likewise have no standing and, it would seem, it was improper and ineffective to try to sue Pence himself in order to increase his own powers.
Amazing how the ilk celebrate all the evasive means used to avoid ruling on the merits: Laches, standing, etc.
Instead of reporting, accurately, that "the other 60 or so losses for the Trump campaign" have almost uniformly been based on procedural grounds, they instead falsely suggest that all of these suits were dismissed as lacking merit, i.e., no proof of election irregularities.
It is, as usual, the case that the left would rather see an out of control security state, a wanton deprivation of civil liberties, etc. than suffer any political embarrassment, let alone defeat. And the "watchdogs" in the news media, disgustingly, support this Orwellian stance.
So, here again, is a perfect example of how to omit material facts that render the statements made misleading or, at minimum, willfully incomplete.
The statement to which Lubet objects isn't quoted in its entirety above.
The statement in the pleading appears to be: "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, i.e., at the time, place, and manner required under Arizona state law and the Electoral Count Act."
Lubet suggests that the reference in the pleading to "permission and endorsement" was to the "joint resolution."
But, a plain reading appears to render that assertion inaccurate.
Whatever the merits of the claim in the complaint, the authority for the casting of these electoral votes appears to have been Arizona state law and the ECA and not the joint resolution.
Breaking my policy of not responding to anonymous comments, in order to correct disinformation (which is all too necessary these days):
The Gohmert complaint says,
"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,i.e.,at the time, place, and manner required under Arizona state law and the Electoral Count Act. At the same time, Arizona’s Governor and Secretary of State appointed a separate and competing slate of electors who cast Arizona’s electoral votes for former Vice-President Joseph R. Biden. . . ."
The statement that the Trump electors cast their votes in the manner required by Arizona law is flatly untrue. The only slate authorized by Arizona law was Biden's. As I accurately stated, the eleven would-be Trump electors were endorsed only by an unauthorized group of 22 legislators (plus 8 legislators-elect ), who signed a so-called Joint Resolution, which I linked.
The term "permission and endorsement" can refer only to the Joint Resolution, because there was no recognition of the Trump electors by any other body, including the actual Arizona legislature. A later paragraph in the complaint makes this explicit (although still misleading), stating that “members of the Arizona Legislature passed a joint resolution” endorsing the Trump delegates, without disclosing that the group that "passed" the resolution consisted of only 22 members meeting outside of a legislative session.
I do not plan to make a habit of responding to repetitive, anonymous accusations from the MAGAsphere, but this one was especially egregious.
Sanctions have not been imposed in any of the 60 or so lawsuits re the election, at least to date. While there are prudential reasons for the courts to decline to sanction the attorneys for filing frivolous suits, it also highlights the degree to which Rule 11 and talk of litigation duties is empty. No disciplinary action will be taken. There is just no cost to any of this nonsense.
COMMENT – "No disciplinary action will be taken. There is just no cost to any of this nonsense."
This may well be true if no one who believes that a violation occurred files a complaint.
That's why I just filed a formal complaint against President Donald Trump. See, e.g.,
WASHINGTON RXAMINER – Lawyer Calls For Conspiracy Investigation Over Trump’s Georgia Phone Call
"John Banzhaf, a noted George Washington University law professor who had a role in the investigations of former President Richard Nixon and former Vice President Spiro Agnew, said in a complaint shared with Secrets that an investigation should consider conspiracy and criminal solicitation."
1. GA Code § 21-2-603 — Conspiracy to Commit Election Fraud
2. GA Code § 21-2-604 — Criminal Solicitation to Commit Election Fraud
3. GA Code § 21-2-597 — Intentional Interference With Performance of Election Duties
https://washex.am/3hFrB74
Steve tries to argue that he didn't claim that the complaint alleged the alternate slate had "permission and endorsement" from the Arizona legislature based on the resolution.
But, based on a clear reading of these posts (omitting, as would any judge in court, the frivolous and false personal attacks), it is clear that Steve's whole argument about Rule 11 is based on the alleged fact that the Resolution was not authorized by the AZ legislature.
On this argument, it is my view that a judge would sanction Lubet, were there a judge here.
He tacitly admits that he deliberately omitted the rest of the sentence, i.e., the part following the "permission and endorsement" clause. That latter part of the sentence was "i.e., at the time, place, and manner required under Arizona state law and the Electoral Count Act."
Now, Lubet claims that the allegation of the complaint "can refer only to the Joint Resolution", but that statement is false.
The complaint made clear, no less than twice, that the claimed "permission and endorsement" was based on state law and the ECA, and not the Joint Resolution.
First, the allegation itself proves the reference by equating the claimed "permission and endorsement" with state law and the ECA. "In other words" ties the two together expressly. Steve left that part out.
Second, the complaint goes on to differentiate the resolution from state law and teh ECA by adding the introductory clause, "At the same time," indicating a separate concept, supportive but unconnected with the alleged basis for the claimed "permission and endorsement."
Finally, Lubet claims that a later paragraph confirms that his omission of the key part of the sentence (key to his argument) was immaterial.
Even a cursory reading of that later paragraph belies this especially weak claim. All the later paragraph alleged was what was already alleged in Para. 5: A resolution was passed.
Repeating that part of the allegations in Para. 5 doesn't cover up Steve's misleading argument, based on omitting an incredibly important part of the sentence upon which he bases his entire argument on SANCTIONS, no less.
All this has nothing to do with whether a plausible reading of AZ state law and the ECA would permit the alternate panel. That wasn't Steve's argument. Steve argues that the pleaders should be sanctioned under Rule 11 for falsely claiming that the vote of the alternate panel was with the "permission and endorsement" of the AZ legislature, based on the resolution.
The complaint expressly did not so allege.
Omitting material facts from any argument claiming sanctions is a particularly egregious offense, because it not only wastes the court's time, but it also improperly impugns the integrity of the opponent.
Nothing I have written is inaccurate, as I explained at more length in The Hill. For confirmation, everyone is invited to read the Gohmert complaint and my article in the Hill, both of which are linked to this post.