6th Circuit Upholds Most Sanctions Against against Trump Campaign Lawyer Sidney Powell

Powell and the other attorneys were among those sanctioned in a blistering order issued by U.S. District Judge Linda V. Parker.

The Sixth Circuit on Friday mostly left in place a Michigan federal judge's sanctions against former Trump campaign lawyer Sidney Powell and a handful of other attorneys involved in a lawsuit challenging the 2020 presidential election results, although it found that some claims were reasonable and therefore not sanctionable. 

The three-judge panel affirmed in part and reversed in part the August 2021 sanctions ruling. Notably, the panel said that a "reasonable pre-filing investigation would have shown counsel that their allegations about [Dominion Voting Systems] were baseless." Thus, those allegations were indeed sanctionable, according to the decision.

And their allegations of various lesser violations of Michigan election law were "baseless," the Sixth Circuit said.

"The problem with those allegations, simply stated, is that counsel apparently did not read the statute they said was violated," the panel said.

At the same time, the Sixth Circuit said the lawyers' complaint did include credible allegations, including that election workers at one voting center "mistreated, intimidated and discriminated against Republican election challengers."

"Indeed some three dozen detailed affidavits supported the complaint's allegations to that effect," the panel said.

And that intimidation and harassment was potentially criminal, according to the decision.

"The district court should not have dismissed these affiants' allegations out of hand," the Sixth Circuit said.

Ultimately, the Sixth Circuit said the district court "found the entirety of the plaintiffs' complaint sanctionable." However, "we find only part of the complaint sanctionable, and thus reverse in part and affirm in part."

It also slightly trimmed awards to the state of Michigan and city of Detroit, subtracting $8,450 in fees from the city's award and decreasing the state's award from roughly $22,000 to about $19,600.

Powell and the other attorneys were among those sanctioned in a blistering order issued by U.S. District Judge Linda V. Parker. According to the judge, Powell and her fellow lawyers attempted to deceive the court through unfounded claims with no supporting evidence, a "historic and profound abuse of judicial process."

Judge Parker, who was appointed by former President Barack Obama, ordered the attorneys to take at least six hours of continuing legal education courses on pleading standards and at least six more hours on election law. She also issued a $175,000 monetary penalty and referred her sanctions order to the Michigan Attorney Grievance Commission and other disciplinary authorities for investigations into possible disbarment or suspension.

L. Lin Wood, Emily Newman and Stefanie Lynn Junttila then appealed individually, and Gregory Rohl, Brandon Johnson, Howard Kleinhendler, Sidney Powell, Julia Haller and Scott Hagerstrom lodged a joint appeal.

In their appeals, the lawyers called the sanctions "career-ending" and argued that Judge Parker had violated their First Amendment rights to petition and discriminated against them based on their and their clients' political viewpoints.

On Friday, the Sixth Circuit sided with the lawyers in part but mostly upheld the sanctions. It said that the complaint indeed stated two claims that weren't frivolous, but that it agreed with the district court that all the other claims were sanctionable.

In particular, the panel said the lawyers pointed to several unreliable reports from "experts" — and also misrepresented another purported expert report — in claiming that Michigan's election results were statistically anomalous or impossible. At the same time, their reliance on several other experts was not sanctionable, it said.

Still, the Sixth Circuit said the district court erred in finding that the attorneys filed their suit for "an improper purpose," in particular asserting that they were trying to use the judicial process to "frame a public narrative."

"But another word for 'framing a public narrative' is speech; and Rule 11 cannot proscribe conduct protected by the First Amendment," the panel said. "True, an attorney may not say whatever she likes inside a courtroom. But an attorney's political speech outside a courtroom — including political speech about a lawsuit — is irrelevant to a Rule 11 inquiry about the suit itself."

The Sixth Circuit continued, "To the contrary, parties and their attorneys are free to use litigation 'as a vehicle for effective political expression and association.'"

Here, speech outside the courtroom is what the district court apparently found objectionable, the panel said. But when it comes down to it, that doesn't show that the lawyers were motivated by improper purposes, according to the decision.

The panel also rejected Wood's argument that he didn't know his name was even on the suit, finding that Lin had publicly touted his involvement, including on social media.

The lawyers involved in the appeal pursued a slew of unsubstantiated claims in the aftermath of President Joe Biden's defeat of former President Donald Trump in the 2020 election. Ultimately, their efforts in Michigan led the city of Detroit to ask that sanctions be imposed against them.

Michigan Gov. Gretchen Whitmer, a Democrat, also filed complaints against Powell and three other attorneys with the Wolverine State's attorney grievance commission, arguing that they should be disbarred.

Paul Stablein, an attorney for Wood, told Law360 on Friday that he and his client respect the Sixth Circuit's decision, but "disagree with the court's conclusion that Mr. Wood had anything to do with the drafting or filing of the complaint in Michigan."

"The defendants did not present sufficient evidence to conclude that Mr. Wood actually participated in the preparation or investigation of the allegations set forth in the complaint filed shortly after the 2020 election," Stablein said. "Though he may have agreed with the other lawyers' efforts, he did not have any knowledge of the specifics of the complaint and the facts it contained or relied upon."

The attorneys, Michigan and Detroit didn't immediately respond to requests for comment late Friday. Junttila couldn't be immediately reached for comment.

U.S. Circuit Judges Danny Julian Boggs, Raymond M. Kethledge and Helene White sat on the panel for the Sixth Circuit.

The attorneys are represented by Stefanie Lynn Junttila of Federal Criminal Attorneys of Michigan and Howard Kleinhendler, Sidney Powell, Paul J. Stablein and Timothy E. Galligan.

Michigan is represented by Heather S. Meingast and Erik A. Grill of the Michigan Attorney General's Office.

Detroit is represented by David H. Fink and Nathan J. Fink of Fink Bressack.

The case is Timothy King et al. v. Gretchen Whitmer et al., case numbers 21-1785, 21-1786, 21-1787 and 22-1010, in the U.S. Court of Appeals for the Sixth Circuit.