Government

Alan Dershowitz Demands Time To Write Law Review Article Explaining Why He Can't Be Sanctioned

Blame the clerk, that'll really impress the judge.

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(Photo by John Lamparski/Getty Images for Hulu)

Alan Dershowitz cannot be sanctioned, and if the court will just grant him the minor concession of 30-60 days to wrangle a bunch of retired law professors, he’ll explain why. Maybe he’ll even get a good law review article out of it!

Oh, you think we’re kidding? Nope!

We therefore respectfully submit that before this court considers imposing any career ruining sanctions on someone of Dershowitz’s esteemed record and history, now also facing Bar inquiry in Arizona as well as Massachusetts over this same issue, that there should be clear guidance and consensus as to what SHOULD be done under these circumstances.

The issues posed by the choices available to Dershowitz in such a circumstance appear to be a proper subject for a law review article, or a formal ethical opinion by the Bar, or by a reasoned decision from this Court, to lend guidance on a subject not at all presently clear. Indeed, Professor Dershowitz intends to do just that: write a law review article on the complexities of the decision that must be made by an increasing number of retired professors, judges and lawyers who have consulting practices that are limited to providing legal advice without wishing to undertake the core responsibilities of lead counsel, counsel of record or full counsel, and who wish to not be subjected to the full responsibility of potential sanctions on other issues they are not involved with or familiar with or have any expertise on.

That is from a “supplement” filed by the emeritus Harvard professor last week in the case of Lake v. Fontes, which sought to force Arizona to use only paper ballots and ban the use of machines both to cast and tabulate votes on the eve of the 2022 primary. The case was the culmination of Pillow salesman Mike Lindell’s promise to “sue all the machines,” and he hired his regular legal team of Andrew Parker, MAGA troll Kurt Olsen, and Dershowitz for the mission.

US District Judge John Tuchi dismissed the case for lack of standing, holding that Kari Lake and secretary of state candidate Mark Finchem, the named plaintiffs, had “articulated only conjectural allegations of potential injuries that are in any event barred by the Eleventh Amendment,” and he granted Maricopa County’s request for sanctions, excoriating the plaintiffs’ counsel for failing to undertake “the factual and legal pre-filing inquiry that the circumstances of this case reasonably permitted and required,” which would have revealed that every vote in Arizona is cast on a paper ballot and leaves an auditable record.

Furthermore, the court found that the attorneys had unreasonably multiplied the proceedings in violation of Rule 11 by filing the complaint in April and then waiting until June, just four months before the primary, to seek a preliminary injunction. Citing as “proof of concept” the notorious Maricopa County “audit” performed by the Cyber Ninjas — which took six months — didn’t help matters either.

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Almost immediately, Dershowitz started howling that he couldn’t be sanctioned because he’d only signed up to be “of counsel” on the “constitutional issues” posed by this fakakta case, and anyway … he’s old.

In fact, he was sometimes “of counsel,” and sometimes just “counsel” — not that it makes any difference.

Dershowitz demanded and got(!) a show cause hearing last week on his request to be exempted from the sanctions order. And then when that was over, he submitted the above-quoted “supplement.” Not because he’d discovered some intervening authority or ruling, but because he had some more words to whine at Judge Tuchi.

First, he blamed the clerks at the courthouse for forcing him to apply for pro hac vice admission if he wanted to sign onto the pleadings.

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“Because the clerk’s office specifically accepted the ‘of counsel’ designation and demanded the pro hac vice admission, Dershowitz reasonably believed his usual use of this term to convey his limited role, was at least consistent with the clerk’s acceptance of that specific designation, as distinct from requiring his appearance as ‘counsel,’ which term connoted to him a full responsibility for the pleadings as a whole under Rule 11,” he huffed, adding that, “in fairness, his “of counsel” filing should have been rejected outright, if there is no such designation that is acceptable.”

It’s a bold strategy, Cotton.

He then turned to the “law review question,” attaching a survey he intends to distribute to his fellow eminences grise, on what a retired professor should do when asked to put his name on a filing which he has neither the time nor the inclination to verify.

Attorneys for Maricopa County responded that that’s not what a supplement is:

Here, Dershowitz has found no new authority. Rather, he improperly uses his Supplement to announce that, in fact, there is no new authority to be found, but he wants the Court to give him time to create some. Specifically, Dershowitz wants to write a law review article, which presumably will support Dershowitz’s position that he is somehow exempt from the ethical rules that apply to all attorneys who sign filings made to a court. Dershowitz will then presumably cite his law review article to this Court to argue that he should not be sanctioned for signing on to a Complaint and Motion for Preliminary Injunction (“MPI”) that this Court found “made false, misleading, and unsupported factual assertions[,]” with “claims for relief did not have an adequate factual or legal basis grounded in a reasonable pre-filing inquiry,” in violation of Rule 11 and 28 U.S.C. § 1927. Dershowitz will then likely argue that Rule 11 does not apply to him, despite the fact that Rule 11 on its face applies to every attorney who signs a filing made to a federal court (as Dershowitz did here).

The county goes on to note that Dersh could have filed an amicus brief, or acted as a consultant for the plaintiffs. And in fact, we know he understands this, because the professor declined to put his name on the RICO LOLsuit Mike Lindell filed in Minnesota against Dominion Voting Systems in response to the company’s defamation suit against him in federal court in DC. Dersh opted to simply “consult” on that little field trip.

Because he was willing to tell Newsweek, “Remember too that the First Amendment doesn’t only give Lindell the right to express his views. It gives 50 million people the right to hear his views.” But he wasn’t going to actually say it in a federal filing, because, Oh, come on.

Next he’ll be whining that it’s not his fault, he just fell in with a bad crowd. Which he did, BUT STILL.

Lake v. Fontes [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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