Holding Lawyers to Account Part 2 | Opinion

A month before last November's election, we wrote a column imploring state bars overseeing the licensing of lawyers to make clear to all attorneys involved in the election process not to file frivolous claims intended to undermine the integrity of election results. We were quite certain that would be what lawyers acting on behalf of former President Donald Trump would attempt to do as part of an overall strategy to overturn President Joe Biden's legitimate election victory.

We stated: "Lawyers are members of state bars, where they have sworn to uphold the Constitution, not undermine it. State bar associations are charged with upholding the integrity of the profession, which often includes bringing disciplinary action against lawyers whose unprofessional or unethical conduct would otherwise compromise that integrity. Trump's campaign lawyers should not get a free pass to act as Trump's agents in an attempt to reverse the election results. ... What are state bar associations going to do to forewarn campaign attorneys that the filing of frivolous actions ... will be subject to scrutiny, potentially warranting disciplinary actions?"

Unfortunately, our concerns were remarkably prescient. Also unfortunately, state bar associations and disciplinary boards did nothing to heed our warning and forewarn campaign lawyers that their actions would be heavily scrutinized. As a result, a plethora of court actions brought by attorneys for the Trump campaign were launched that were not only frivolous, but ludicrous on their face, lacking any supporting evidence, and were summarily thrown out of court almost everywhere they were filed.

Last month, a federal judge in Michigan wrote a 110 page opinion blasting the nine lawyers involved in bringing one of those cases in Michigan. Among the lawyers Federal District Judge Linda Parker sanctioned were Sidney Powell and L. Lin Wood—two of Trump's most notorious advocates ruling that a lawsuit they pursued claiming a number of ridiculous conspiracy theories, including that election machines made by Dominion Voting Systems were tampered with by Venezuelan intelligence agents—never should have been filed.

Judge Parker, in sanctioning the nine attorneys for their unethical conduct, ruled that the lawyers abused well established rules of litigation by putting forward charges that were in no way supported by either law or evidence but instead were simply "speculation, conjecture, and unwarranted suspicion." Judge Parker wrote that the case "was about undermining the people's faith in our democracy and debasing the judicial process to do so."

Potentially the most important thing about the judge's order was that she referred all nine lawyers for disciplinary review for possible disbarment by each of their respective state bar licensing boards. Judge Parker's opinion stated, "despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs' attorneys have scorned their oath, flouted the rules and attempted to undermine the integrity of the judiciary along the way ... their ultimate goal was the decertification of Michigan's presidential election results and the certification of the losing candidate as the winner."

U.S. flag flying next to the Capitol
The U.S. flag flying next to the Capitol dome in Washington, D.C. KAREN BLEIER/AFP via Getty Images

While it is certainly a triumph for election integrity that these lawyers are finally being brought to justice for their nefarious actions, it now falls to the state bar associations and disciplinary boards in these respective states to do what must be done to send the clear message for future elections that lawyers will face disbarment for attempting to undermine free and fair elections. As we stated in our original column: "Allowing lawyers to act without constraint in an attempt to invalidate the most sacred right of any citizen would be a complete dereliction of basic bar organization responsibility to make sure the ethical conduct of lawyers is appropriately policed." However, in the case of Powell and Wood, the underlying state bar disciplinary boards which must take the action to disbar these lawyers are in key electoral swing states—Texas and Georgia, respectively—run by Republican governors and state legislatures.

Bar associations and licensing boards are not immune to political pressure, and many of the lawyers involved in these top bar roles are Republicans themselves. Almost all Republican officials in those states still proclaim to adhere to Trump's Big Lie. Yet, the job of truly following through on Judge Parker's strong statement on the important role of lawyers in upholding a democracy is now in their hands.

There are two key tracks that Donald Trump took to try to overturn the election. One was attempting to get Republican state legislatures to declare their state elections results were invalid and to certify instead an alternative slate of Trump-supporting electors to overturn Biden's legitimate Electoral College victory. Congress is currently considering legislation that would protect against this in the future, but whether Congress accomplishes this or not is hung up in a fight over whether to overturn the filibuster rule in the Senate.

The other Trump track was bringing court cases that were intended to provide state legislatures with some tangible basis to take the extreme action of overturning the election results. While Congress may not act to prevent state legislatures from overturning legitimate election results, disbarring lawyers who brought these court cases to support legislatures doing so will certainly go a long way in preventing that path from being attempted again in 2024. So, while our call to action to the various state bar disciplinary boards and bar associations was ignored back in October 2020, we now hope that lawyers in such key swing states as Texas, Georgia, Nevada and Michigan, where these disbarment actions are now referred, will rise to the occasion and support the disbarment of these Trump campaign attorneys with the strong support that Judge Parker's opinion provides.

Other attorneys brought to task here involve lawyer licensing bodies in New Jersey, Virginia, Maryland and New York. In a related action, the Appellate Division of the New York State Supreme Court temporarily suspended Rudy Giuliani's license to practice law pending further proceedings before the Attorney Grievance Committee for his role, among other activities, in the Jan. 6 rally leading up to the Capitol Hill riots. In addition, the New York State Bar Association launched a probe as to whether Giuliani's membership should be revoked. New York has further work to do to make the Giuliani disbarment permanent, but it has begun to show the path that other state licensing boards and bar associations now need to go down.

It is bad enough for any lawyer to knowingly lie to a court and fabricate evidence, but it is beyond egregious when doing so has been responsible for a significant percentage of United States citizens still believing that Donald Trump won the election and that it was illegitimately stolen from him. If there was ever a case for crimes against the U.S. and state constitutions, this is it, and lawyers deserve the ultimate penalty for their role—losing forever the right to practice law in a country that is built on the notion that we are a nation of laws, not men. As the lead attorney who brought the case stated, "let the world know that attorneys in this country are not free to use our courts to tell lies."

Timothy E. Wirth is a former U.S. senator from Colorado.

Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chair of Engine Media and is former senior counsel to a congressional committee.

The views expressed in this article are the writers' own.