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(Photo by Drew Angerer/Getty Images)
The Kraken is back, baby, and it is … quacking?
If you see a flock of feathered animals quacking as they waddle towards a lake, you can reasonably infer that they are ducks, even if not all are clearly discernible. Sure, there might be a goose or a chicken in there somewhere, but it is certainly rational and proper to suggest that, after closer examination and further inquiry, those might be ducks after all. What is not rational and proper is to focus on the one or two animals that are not clearly identifiable, ignore the rest, and conclude it’s a flock of cats—and no one could possibly think otherwise.
This barnyard analogy appears in an appeal to the Sixth Circuit of the sanctions imposed last year on attorney Sidney Powell and her merry band of Kraken lawyers in the Michigan tentacle of their election LOLsuits. In August of 2021, US District Judge Linda V. Parker ordered them to go to continuing legal education and pay attorneys fees to various Michigan government entities. Among other barnyard epithets, their sins included attaching facially nonsensical affidavits cribbed from other election suits without vetting them at all. The above analogy was by way of arguing that some of the affidavits were true, and so the court was wrong to sanction them for the few lying cats in the bunch.
Which is hilarious, and extremely on-brand for Sidney Powell and Howard Kleinhendler, the two Krakenhead lawyers who put their names on this brief. Less hilarious is their invocation of Martin Luther King’s 1966 speech describing riots as “the language of the unheard,” both because of the breathtaking audacity of the comparison and because of the implied threat of violence less than two years after people who believed their lies about a stolen election stormed the Capitol seeking to overthrow the government.
In their telling, if the court doesn’t allow them to file frivolous election challenges, then the mob will take matters into their own hands. And we wouldn’t want that, would we?
Appellees offer this Court a naïve vision of elections in a democracy, one that suggests people in a deeply divided nation should immediately shake hands and say “good game” after a hard-fought election seems narrowly lost—as if they have ever done that.
The choice is not between Appellees’ vision of citizens joining hands and signing kumbaya, and election litigation they do not like. The choice is between orderly resolution of election disputes by disinterested judges, and more direct, less orderly agitation for redress.
Later they warn that without “First Amendment’s pressure valves,” by which they mean lawsuits based on facially nonsensical claims of election fraud, “our great experiment would fail, because citizens who lack channels for peaceful expression of grievances will eventually, ineluctably choose non-peaceful means.”
Never mind that these lawyers and their allies filed at least 65 such election challenges in 2020, and the country still suffered an outbreak of that “more direct, less orderly agitation for redress” by dint of “non-peaceful means.”
Perhaps cognizant of the possibility that the appellate judges might have read about the events of January 6, 2021, they hedge slightly by claiming that they were simply never heard on the merits, and lost on mere procedural grounds.
“Refuting Plaintiffs’ claims on the merits, rather than sweeping them out of court and sanctioning their lawyers, could have assuaged such doubts,” they tut tut.
They also fault Judge Parker for failing to let them file an election challenge based on unproven evidence and test it out via “the crucible of an evidentiary hearing.”
Far from according the greater leeway that has always been applied in fastmoving election litigation with deep First Amendment and public policy implications, the District Judge adopted a nit-picky, censorious approach, venting her revulsion at what she viewed as an unjustified assault on our political process. This is viewpoint discrimination—the most odious intrusion on First Amendment rights known to our law. It cannot stand.
If we might quote our own coverage, here are some of the things these lawyers defended as satisfying their obligation to diligently vet the evidence they presented to the court:
Copy-pasting an affidavit filed in another lawsuit where a rando dogwalker says he saw an unusually cheerful couple hand some bags to the UPS guy and assumes they must be delivering fraudulent ballots is not a reasonable inquiry.
Failing to examine an expert’s statistical analysis based on facially ridiculous voter turnout figures (782 percent in Muskegon, REALLY?) is not a reasonable inquiry.
Declining to verify whether your anonymous so-called expert witness has the qualifications he claims to have — and then failing to clarify with the court when the Post outs him — is not a reasonable inquiry.
Docketing affidavits attesting that some people requested absentee ballots and then went on to vote in person, without bothering to ascertain whether this is illegal — it isn’t — is not a reasonable inquiry.
As Judge Parker wrote in her scathing sanctions order, “It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.”
And yet these lawyers insist they are victims of a campaign to ensure that no attorney will ever bring an election challenge again.
Americans generally follow the People’s Court bromidic motto: “If you’re in a dispute with another party and you can’t seem to work things out, don’t take the law into your own hands; you take ’em to court.” How long will this ethos endure if lawyers are too scared to bring difficult cases for fear that a hostile judge will end their careers because they don’t have a case that is not “distinguishable,” or the judge finds their case or some of their suggested inferences offensive? If they can’t go to court, where will those citizens go to seek redress for their grievances?
Oh, look, more threats of violence!
They’re not unethical hacks who spammed the federal docket with procedurally defective lawsuits resting on bogus evidence they hadn’t bothered to vet. They’re civil rights pioneers!
Baker v. Carr, Miranda v. Arizona, Obergefell v. Hodges, Heller v. District of Columbia, Citizens United v. FEC, West Virginia Board of Education v. Barnette, Tinker v. Des Moines, New York Times v. Sullivan, Nixon v. United States, Gideon v. Wainwright, Plyler v. Doe, Bush v. Gore and scores of cases like them would never have reached the Supreme Court under the District Court’s and Appellees’ punitive view of proper advocacy.
Can’t have marriage equality without false affidavits, right?
Good luck with that, fellas. And with the bar complaints, too.
Quack, quack!
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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