Despite a definitive statement by the Department of Homeland Security that the 2020 election “was the most secure in American history,” since Election Day, lawyers supporting the Trump campaign have filed some three dozen lawsuits alleging voting irregularities in five key states. The most common legal claims are that Republican poll watchers were denied meaningful participation in the process of counting absentee and mail-in ballots and that supposedly defective Democratic votes were counted, while valid Republican votes were not.
So far, state and federal courts across the United States have quickly and decisively rejected the majority of these challenges for lack of a legal or factual basis. (As it stands, a running count kept by Democratic election lawyer Marc E. Elias has the GOP and Trump’s current tally as a lopsided 2–34—and the “wins” were partial.) A number of lawyers have begun to withdraw from these challenges, and cases in Arizona, Michigan, and Pennsylvania have been dropped. However, several challenges remain, and the president’s lawyer Rudy Giuliani continued to insist, as he did in federal court last Tuesday, that there had been “widespread national voter fraud,” while the lawsuits themselves don’t actually allege any specific fraud.
All this raises the question of the lawyers’ ethical conduct in bringing these cases in the first place. A New Jersey congressman has called for the disbarment of nearly two dozen Trump lawyers. As scholars who have devoted the better part of our professional lives to the study of legal ethics, we believe, based on the records publicly available to date, that the disciplinary case against certain of Trump’s lawyers is strong.
Of course, there is nothing unethical about launching a lawsuit thinking that it’s a long shot likely to fail. Lawyers cross fundamental professional boundaries, however, when they file cases that make unsubstantiated allegations of election fraud and heedlessly assist their client’s calculated effort to erode trust in our democratic system. For lawyers who have sworn to uphold the rule of law, that is an astonishing breach.
The ethical requirements that govern lawyers are set forth in the American Bar Association’s Model Rules of Professional Conduct. Though the particulars vary somewhat by state, these rules govern every lawyer practicing in the United States today and have requirements that govern the election conduct at issue. For example, Rule 3.1 states that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Although filings are not frivolous “merely because the facts have not first been fully substantiated,” lawyers are duty-bound prior to filing to “inform themselves about the facts of their clients’ cases and the applicable law.” Moreover, lawyers have “a duty not to abuse legal procedure,” which, given the stakes in these cases, imposes a special obligation to ensure the basic accuracy and credibility of their challenges. And, under another governing provision—Federal Rule of Civil Procedure 11 and state-court counterparts—lawyers also can’t file suit “for an improper purpose” such as causing “unnecessary delay.”
In the wake of this election, multiple lawsuits have defied these basic principles. Trump’s lawyers have filed factually unsubstantiated claims and advanced facially frivolous legal arguments, often seemingly in an effort to run out the clock as vote certification deadlines loom. In Michigan, Trump’s lawyers alleged that Democratic inspectors were “curing” rejected absentee ballots without permitting Republican inspectors to be present, based on what the court identified as nothing more than “speculation and conjecture.” Lawyers filed another suit supported only by a single affidavit based entirely on inadmissible hearsay. In Pennsylvania, lawyers claimed that the county board of elections was “intentionally refusing” to allow any representatives for the Republican Party to observe, but then Trump lawyer Jerome Marcus admitted, when pressed during oral argument, that the party had “a nonzero number of people in the room.” In Nevada, Trump’s lawyers filed a lawsuit complaining about “over 3,000 instances of ineligible individuals casting ballots,” though those claims had been thoroughly debunked. In Georgia, lawyers challenged absentee ballots purportedly received after the voting deadline—but, when pressed, acknowledged that no one knew if the ballots were, in fact, late.
In an episode that would border on the comical if it weren’t so dangerous, Trump lawyer Lin Wood recently submitted an affidavit by a security expert that detailed impossibly high voter turnouts in blue precincts of Michigan. There was only one problem: The precincts he listed are in red areas, and they are in Minnesota, not Michigan. Of course, lawyers are not expected to fact-check every affidavit they submit. But the episode evidences a throw-it-all-at-the-wall-and-hope-something-sticks approach—and that is exactly what the rules against frivolous filings are meant to prohibit.
And then there is Pennsylvania. There, three sets of Trump lawyers withdrew from a constitutional challenge, perhaps for ethical reasons, and Rudy Giuliani was forced to make his first court appearance in decades. Judge Matthew W. Brann’s scathing opinion subsequently dismissed the Republican lawsuit and denied plaintiffs’ request to amend the complaint. In rejecting the amendment, the court cited grounds such as “undue delay, bad faith, dilatory motive, prejudice, and futility.” The same day Brann threw out Giuliani’s federal constitutional challenge, attorneys Gregory Teufel and Brandon M. Shields assisted Republican Congressman Mike Kelly and his co-plaintiffs in filing yet another suit, this time claiming that the state law permitting mail-in ballots violates Pennsylvania’s constitution. Among its other infirmities, their complaint neglects to mention that the state-imposed deadline for filing state constitutional challenges to the law has long since passed. In their Pennsylvania lawsuit, Giuliani and his team filed an amended appeal to the Court of Appeals for the 3rd Circuit that the University of Texas School of Law’s Stephen Vladeck described as “both literally and analytically incoherent.”
Ultimately, Trump’s lawyers’ conduct should not be viewed in a vacuum. The conduct must be judged in the context of the Trump campaign’s broader effort to perpetrate an unprecedented fraud upon the American public by claiming election theft, without a shred of credible evidence. Rule 1.2(d)—another key provision governing American lawyers—states that “a lawyer shall not … assist a client, in conduct that the lawyer knows is … fraudulent.” Nor, under Rule 8.4, may a lawyer “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or “that is prejudicial to the administration of justice.” Further, the preamble to the Rules makes clear that lawyers have “special responsibility for the quality of justice,” which includes furthering the public’s “confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”
These frivolous lawsuits are expressly engineered to undermine the public’s faith in core democratic processes. These efforts to sow distrust predated the election and have escalated in its wake. Since Nov. 3, Trump has gone to Twitter to charge “corruption,” allege “tampering with an election,” and assert the existence of a “mail-in ballot hoax” to “steal the election.” Prior to Nov. 3, Trump repeatedly made false claims of fraudulent mail-in ballots in an explicit effort to delegitimize the election and lay the groundwork for legal challenges. Indeed, going all the way back to 2016, Trump has repeatedly said he’d accept election results—but only “if I win.” Partly as a consequence of these concerted efforts, about three in four Republicans now doubt that the election was “conducted fairly and accurately.”
Biden’s election victory has been recognized by every major media outlet, including Fox News, most international leaders, and all objective observers. Yet Trump’s lawyers continue to file, press, and appeal suit after suit to support the president’s desperate effort to cling to power. While we support any campaign’s right to pursue valid legal claims, case after case has shown that there is no factual basis to support the efforts here, which are clearly intended to undermine confidence in election results and democratic institutions. It is a shameful irony that the profession charged with upholding the rule of law has so many members intent on helping a client subvert it.
Courts and state bars have power to punish and deter such misconduct. Judges have the inherent authority to discipline lawyers and can also impose financial sanctions under Rule 11. And when lawyers misbehave, state bars can impose stiff penalties, up to and including disbarment. With that power to demand compliance with ethical rules comes a responsibility to act on violations. If ever there was a time for the bar to take that responsibility seriously, the time is now.