Should Trump-allied lawyers be punished for 2020 election suits? The jury is still out.

WASHINGTON – A few are household names, like Rudy Giuliani. Some are more obscure but played critical roles in the effort to overturn the 2020 election.

More than two years after courts largely dismissed a flurry of lawsuits from allies of former President Donald Trump aimed at reversing the election, the debate over whether to punish the lawyers who filed those suits continues to play out across the nation.

The outcome of dozens of pending ethics investigations could eventually have consequences for the 2024 presidential election and beyond. Advocates say the goal of sanctioning attorneys for “Big Lie” lawsuits is to prevent another wave of Hail Mary litigation based on conspiracy theories in the future.

“The ultimate goal is to deter it,” said Michael Teter, managing director of the 65 Project, which has filed nearly 80 ethics complaints with state disciplinary boards. “From our standpoint, we wanted to make sure that lawyers know they’re not going to get away with this.”

Is time running out in effort to punish Trump lawyers?

But Teter and others acknowledged the work has been slow going. And some of the cases may not be resolved by the time voting begins next year.

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When lawyers are sanctioned, it’s usually for egregious conduct like stealing a client’s money or committing other crimes, said Bruce Green, a professor at Fordham Law School. Sanctioning a lawyer for what they put in a lawsuit is trickier.

“The line between a weak claim or a losing claim on the one hand and a frivolous one on the other is sometimes not so clear,” Green said. “You have to have some facts to support your claim, and you have to have some legal arguments that aren’t ridiculous.”

Critics say the effort by groups like 65 Project have been aimed exclusively at lawyers representing Republicans, and they see the complaints as an effort to weaponize – and politicize – disciplinary review so that lawyers will think twice before representing GOP candidates. Others say the group and others like it are opening the door to reprisal attacks if Democrats challenge their own losses in the future.

“It’s a tactic,” said Alan Dershowitz, an emeritus Harvard Law School professor and the subject of a 65 Project complaint for his role representing former Arizona gubernatorial candidate Kari Lake – a role he said was limited to helping write a single paragraph on a constitutional matter in a lawsuit. 

"People will not take on Trump-related cases," he said. "That's the intention and that's the result."

The 65 Project lists two senior advisers with ties to Democrats: David Brock, who founded a super PAC that spent nearly $85 million on Democrats in the 2020 election, and Melissa Moss, a Democratic consultant who worked in President Bill Clinton's administration. Teter notes the group has two Republican board members: Paul Rosenzweig, who served in President George W. Bush's administration, and Stuart Gerson, who worked in President George H.W. Bush's administration and was briefly the acting attorney general under Clinton.

Teter said the group has not filed complaints against lawyers representing Democrats because none of them manufactured facts in court as a basis for overturning an election.

Despite 'Kraken' and 'glaring flaws,' discipline remains rare

Some attorneys involved in the election litigation have faced sanctions.

Giuliani, the former mayor of New York who was Trump's personal attorney, had his law license suspended in New York in 2021 for making “demonstrably false and misleading statements” to courts. Jenna Ellis, who also worked for Trump, was censured by the Colorado Bar Association in March as part of a settlement in which she acknowledged making false statements about the election. Ellis retained her law license.

Sidney Powell, known to many Americans for vowing to “release the Kraken” in a series of lawsuits stuffed with conspiracy theories involving former Venezuelan dictator Hugo Chavez, was the subject of a federal appeals court sanctions hearing last month. In that case, Wisconsin Gov. Tony Evers, a Democrat, is seeking to recover more than $100,000 in attorney fees from Powell for filing the lawsuit attempting to overturn the results in the Badger State. A U.S. District judge dismissed the case days after it was filed.

Powell is appealing another sanctions suit in Michigan, where she also is the subject of a state attorney discipline board complaint.

Disciplinary officials, meanwhile, continue to debate whether to revoke Giuliani’s law license in Washington, D.C. – a process that can take years.

Lauren Stiller Rikleen, executive director of the group Lawyers Defending American Democracy, said the bar associations and disciplinary boards set up in the states historically have handled complaints from clients over money and representation.

Those boards have had to adjust to deciding complaints that allege harm to the entire nation, she said.

And that has taken time.

“For us it’s about maintaining trust in the legal profession,” said Rikleen. “You can’t have trust in the legal system if attorneys can lie in open court without being held accountable.”