According to Justice Scalia, Trump's Lawyers Should Face Sanctions for 'Litigation Abuse' | Opinion

The vast majority of Americans now recognize that Joe Biden will be our nation's next president. Nonetheless, only moments after all the major networks called the election for Biden, Donald Trump issued a defiant statement promising to "prosecute our case in court" and arguing that Biden has been "falsely" declared the winner. It's not exactly clear what Trump's legal objection is, but it appears he'll be arguing that some unspecified number of "illegal" ballots were counted, and also that there's been a media and pollster conspiracy to mislead the public.

Being a sore loser disgraces the office of the president, but acting disgracefully is not illegal. After all, the president and the few remaining pundits who repeat his totally unsupported ideas can't easily be punished for lying to the American people. But his lawyers in these promised lawsuits are different than politicians and pundits. As officers of the court, they swear oaths to present only cases that have a "basis in law and fact."

If the Trump campaign continues to file cases claiming fraud that lack any actual evidence of fraud or malfeasance, its lawyers should be fined, suspended or even disbarred. But don't take my word for it—take the word of the late conservative hero Justice Antonin Scalia.

Scalia weighed in on this issue in 1993. That year, the Supreme Court adopted amendments to the federal rules of civil procedure, which are the boring, complicated compendium of legal rules that apply in every federal court in the country. Under those rules, a lawyer may not sign a paper that is "being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation." The rules also state that "the factual contentions" in a legal pleading must either "have evidentiary support" or "will likely have evidentiary support after a reasonable opportunity for further investigation or discovery."

In sum, it's against federal law for a lawyer to do what Trump is openly asking his legal team to do: make stuff up about fraud solely to delay, confuse and harass. Courts are broadly authorized to impose sanctions on lawyers for violating these rules, including by issuing fines and suspensions.

So how harsh should judges be in applying these rules? In a 1993 opinion regarding changes to this rule, Scalia wrote that judges should come down hard on lawyers abusing the system in this way. In his view, lawyers who go to court without evidence for their cases should be sanctioned with mandatory fines, and they should not be given any opportunity to correct their errors by withdrawing frivolous filings. "In my view," he wrote in an opinion expressing little sympathy for lawyers who engaged in what he termed "litigation abuse," "those who file frivolous suits and pleadings should have no 'safe harbor.'" Scalia thought that courts must punish this conduct to deter bad behavior and free up the use of the courts' time to hear legitimate disputes.

It's particularly important that the courts take Scalia's advice and deny any "safe harbor" to lawyers who file cases without evidence just to delay or harass, for two main reasons. First, judges cannot allow the president to use the courts to give these baseless claims an aura of legitimacy. Republican House Minority Whip Steve Scalise, for instance, has tweeted that the "election is not final" until the legal "process is resolved." But if the Trump campaign is just going to file meritless cases every day for the next two months, then, by this standard, the election will never be final. This is nonsense. Judges should not allow the Trump campaign to point to pending lawsuits to let people think that the election is not final, and lawyers who would be a party to this abuse must be sanctioned.

Second, letting lawyers skate by for filing baseless lawsuits is particularly perverse in the middle of the pandemic. Courts are invaluable public resources, and court proceedings have been delayed substantially this year. Trump's lawyers should not be allowed to clog the already over-taxed state and federal courts with a blitz of baseless litigation that wastes the time of judges and court staff, and costs the taxpayers money. To deter this behavior, the lawyers who dare file cases without evidence must be punished.

President Donald Trump
President Donald Trump speaks in the briefing room at the White House on November 5 in Washington, D.C. Chip Somodevilla/Getty

To be sure, everyone with a good faith legal claim deserves a day in court. And there are surely a few claims that even Trump can bring in good faith; for instance, if Trump is within the margin of a recount in a particular state, there's no reason he can't file suit asking for one—as long as he's willing to foot the bill if the recount doesn't change the outcome. But most cases won't have a prayer, because they are not even supposed to be based in reality. Members of the American Bar Association must be very wary of taking the president up on this campaign of frivolous lawsuits. Judges following in Scalia's footsteps can, and should, punish the lawyers severely.

Jason Harrow is Supreme Court elections lawyer and chief legal counsel for Equal Citizens.

The views expressed in this article are the author's own.