We have been discussing the merits and demerit of sanctions of the Trump attorneys. My reaction to the initial complaint filed by the Trump campaign was vulgar, a sentiment more delicately put by the New York Times editorial writers, then Judge Matthew Brann dismissing the case, and now in a unanimous opinion in the Third Circuit by Judge Bibas for himself, Chagares and Smith:
The Campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.
Having vigorously defended some who committed odious crimes I am generally aligned with Justice Hugo Black who in 1948 wrote:
And nowhere is this service deemed more honorable than in case of appointment to represent an accused too poor to hire a lawyer, even though the accused may be a member of an unpopular or hated group, or
may be charged with an offense which is peculiarly abhorrent.
But a different set of constraints operates when lawyers - for a fee or in hope of ingratiating themselves with a compadre or in hope of future business pursue a matter without "a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law." RPC 3.7 None of those elements appeared to be present to Bibas, Smith, and Chagares.
Such "lawyering" deserves rebuke beyond the blunt language of the District and Circuit judges. A serious attempt was made to vitiate an election for the highest office. I understand the impulse to shrug off the misconduct for fear of appearing to replicate the "lock 'em up" tweets and cries of a Trump rally. But we are not done yet with the restoration of good order. This was not an idiosyncratic offense by some sad solo practitioner, though Rudy Giuliani now fits that bill. But a blow at the heart of democracy by the personal lawyers of a norm-shattering President who to this day insists on his alternate view of facts. We should call on the disciplinary authorities to say so.
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