Government

Kraken Appeal Of Sanctions Order Flops Into The Sixth Circuit

Leaving a trail of rancid slime in its wake.

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After US District Judge Linda V. Parker issued a blistering sanctions order on the lawyers in the Michigan Kraken LOLsuit, Sidney Powell and Howard Kleinhendler are taking matters in their own hands. They’ve apparently parted ways with attorney Donald Campbell — who is not a potted plant! — and will be representing themselves in the appeal of Judge Parker’s order. Which means there’s no attorney, or even a rational adult, intermediating between Team Krak and the Sixth Circuit in the dispute over attorney’s fees and a bar referral for their effort to overturn Biden’s win in Michigan.

So far it’s going great.

The 86-page appeal, a mere 4,681 words over the 13,000-word limit, is peak Kraken, which is to say that it is totally batshit. Come for the mischaracterization of the rules of evidence, stay for the ad hominem attacks on a sitting federal judge.

Powell and Kleinhendler will go to their graves insisting that they had no obligation to review the laughable affidavits they lifted from other cases and submitted to the court, neither for credibility, nor to determine whether the conduct alleged was even illegal.

“Sanctioning lawyers for bringing such cases because they have not crossed every ‘t’ and dotted every ‘i’, at the time they file the complaint will deter future lawyers from bringing such cases, casting a chilling pall over such advocacy,” they huff, adding that “attorneys are not required to have any evidence—sworn or otherwise—beyond a client’s say-so before bringing suit.”

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That is perhaps not an entirely apt description for copy-pasting an affidavit from another lawsuit in which some dog walker claims to have seen an unusually cheerful couple hand a bag to the UPS guy, which he suspects of being a delivery of fraudulent ballots.

The trial court was similarly incensed that the lawyers failed to disclose that their so-called expert witness Joshua Merritt, AKA Spyder, turns out not to have been the “former electronic intelligence analyst with 305th Military Intelligence” described in their briefs. (Indeed, they seem to have gone to some lengths to conceal the identity of multiple witnesses who were not who they claimed to be.)

Team Krak insists that there was no evidence of Merritt’s lack of the advertised expertise, despite the fact that the Washington Post tracked it down almost immediately. They even goes so far as to insist that they had no obligation to correct the record with the court because “there was no pleading due during that period [and thus] counsel would have had to file a special notice advising the District Court of information that was already national news.”

“Why counsel were under a professional obligation to do so, when the possibility of getting effective relief was rendered essentially null the following day after Congress affirmed the Electoral College count and counsel was contemplating dismissing the case altogether, the District Court does not explain,” they add, a mere eight pages before arguing that they could not possibly have vexatiously prolonged this litigation because there was still a possibility of relief after Congress met and certified Michigan’s Democratic electors.

“Nor is it entirely clear that even January 6 was the drop-dead date,” they insist. “Had Michigan been ordered to withdraw its certification after that date, Congress could have reconsidered its vote.”

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They also argue that they didn’t need to have a verifiable claim, because ginning up publicity for their cause was justification enough to spam the federal docket: “Public interest litigation generally involves both a case and a cause. Entities bringing such cases routinely use litigation as a way of publicizing their message. There is nothing improper or unethical about this.”  Interestingly, Powell makes the exact opposite argument in her countersuit against Dominion, accusing the company of filing a defamation suit against her as a form of “lawfare” to clear its own name.

But most egregious are the repeated broadsides against Judge Parker. Nothing says rational actor making a good faith argument like accusing the trial judge of “fulminations,” “lavish outrage,” a “one-sided effort to paint Appellants as scoundrels bent on deceiving the court,” giving “its personal opinions the weight of punitive government sanction,” and writing a “blunderbuss opinion, sanctioning lawyers for building a case on scant evidence augmented by intuition.” (Are they actually admitting this case was bullshit from the jump?)

“Contemplating the order’s prolixity, one might think it must at least check all the requisite procedural boxes,” they remark snidely, adding later that “one wonders how the District Court’s written work product would fare under its own unblinking glare.”

And this closing paragraph, explaining that the award of attorney’s fees and referral to the bar — “maximum possible sanctions, with the clear purpose of depriving them of their livelihoods” —  seems particularly ill-advised:

The District Court has improved upon Voltaire’s observation that “[t]yrants have always some slight shade of virtue; they support the  laws before destroying them”: It managed to shred the Constitution at the very same time it wrapped itself in the flag. In the canonical account of treachery towards a sovereign, it is one of the supporters of the pretender to the throne who proposes, “The first thing we do, let’s kill all the lawyers.” Shakespeare, Henry VI, Part II, Act IV, Scene 2. That is because “Shakespeare knew that lawyers were the primary guardians of individual liberty in democratic England.” J.B. Hopkins, The First Thing We Do, Let’s Get Shakespeare Right!, 72 Fla. B.J. 9, 9 (Apr. 1998). Americans know this too.

“[T]he District Court does everything possible to make Appellants seem overwrought, dangerous lunatics,” they moan. Which is giving Judge Parker more credit than she deserves. This crew is perfectly capable of demonstrating that they are overwrought, dangerous lunatics without any help from the court.

King v. Whitmer [Appeal]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

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