A Detailed Evaluation Of The Kraken Sanctions Decision

What follows is somewhat lengthy but I hope others may be able to use it as a resource to show those who continue to believe in election fraud claims, and in particular the so many “affidavits” they falsely believe the courts ignored. In her 110 page decision imposing strong sanctions on Sidney Powell, Lin Wood, and other attorneys who filed lawsuits in Michigan, Judge Linda Parker directly addresses many of these affidavits and the problems with them. This is very much a decision “on the merits” as the judge finds that both the factual and legal merits of this case were absolutely without any merit.

SETTING THE TABLE

Judge Parker certainly did not mince words in her opening paragraph:

This lawsuit represents a historic and profound abuse of the judicial process.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.”

As we shall see her clear contempt for the filings continues throughout the opinion. Some more selected quotes as Judge Parker continues to set the table early in the opinion.

“this case was never about fraud — it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.”

“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.”

“this suit has been driven by partisan political posturing, entirely disconnected from the law and is the dangerous product of an online feedback loop, with these attorneys citing ‘legal precedent’ derived not from a serious analysis of case law, but from the rantings of conspiracy theorists sharing amateur analysis and legal fantasy in their social media echo chambers.”

LYING TO THE SUPREME COURT

Judge Parker begins her discussion on the specifics of why the attorneys involved deserve sanctions with the observation that they merely lied to the Supreme Court of the United States. Desperate to get the Supreme Court to hear their appeal on an emergency basis the attorneys told the Supreme Court that unless the Justices heard and ruled on their appeal before the electoral college cast its votes that “subsequent relief would be pointless,” as “the petition would be moot” and they would have to dismiss it.

The Supreme Court declined to hear their case and pursuant to law Michigan’s electors cast their votes on December 14th. By their own representations to the Supreme Court they were obligated to dismiss the case. They did not. Their refusal to dismiss the case, until many weeks later, compelled the defendants to incur the continued costs of defending it.

THE AFFIDAVITS OF NONSENSE

Based on affidavits the attorneys repeatedly made allegations that even if true did not violate Michigan law. The attorneys never bothered to look up whether the described conduct was even illegal. Let’s run through some examples.

  • Plaintiffs presented affidavits alleging that cars were observed where those in them dropped off more absentee ballots than there were people in the car. However, Michigan law allows spouses or family members to drop off ballots. I did this myself under a similar rule in Florida when I dropped off ballots for myself and my wife. Any observer would have noted I dropped off two ballots with only one person in the car, all quite legally.
  • Plaintiffs presented affidavits alleging absentee ballots were counted that had no postmark. However, this proves nothing because people don’t have to mail their absentee ballots. They can drop them off directly at the country clerks office, as I did in Florida with the ballots for my wife and I.
  • Plaintiffs presented affidavits from people who observed ballots being run twice through the counting machines. Even if true, this is a common occurrence when something goes wrong with the first run through. When that happens that wrong batch is cancelled before being run again. If votes were double counted that would be found in the canvas process as there would be more votes counted than received.
  • Plaintiffs presented an affidavit from a county worker who claims he saw people vote in person who received absentee ballots. However the affidavit did not allege, and there was no evidence, these voters also voted absentee. Michigan law expressly allows people who requested and received absentee ballots to vote in person instead. In the words of the court, “It does not shock the Court that a Michigan resident can request an absentee ballot and thereafter decide to vote in person.”

Other affidavits simply presented unsupported and often absurd speculation from witnesses that was then amplified by the attorneys into something nefarious. ​​​​​

  • Plaintiffs presented an affidavit from a guy who, while walking his dog, saw a van drop off large plastic bags of mail to a USPS vehicle. He just speculated, with no evidence at all, that the bags might have ballots in them. From this non-event, the Plaintiffs attorneys claimed, “unsecured ballots arrived at the TCF Center loading garage, not in sealed ballot boxes, without any chain of custody, and without envelopes, after the 8:00 PM Election Day deadline.”
  • Plaintiffs alleged an “illegal vote dump” of tens of thousands of ballots “fraudulently added.” Their support for this was the affidavit of Mellissa Carone, whose comically frazzled testimony before a Michigan legislature Republican committee, was part of a Saturday Night Live skit. Carone’s affidavit said she two vans pull into the parking lot of the vote counting center. She thought they were vans to provide food for workers there, but she never saw food come out of them. She never claimed to see anything come out of them. Nonetheless, two hours after the vans left, she heard that 100,000 more votes had been found. Based on nothing else she simply assumed the vans had been dumping illegal votes for Biden. Carone’s affidavit, as the judge put it, “describes ‘facts’ that demonstrate no misconduct or malfeasance, and amount to no more than strained and disjointed innuendo of something sinister.”
  • Another affidavit alleged presented Plaintiffs briefs described as “eyewitness testimony” of vote switching. In relevant part the affidavit said: “I observed a station where election workers were working on scanned ballots that had issues that needed to be manually corrected. I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates.” No basis for that belief was stated. The judge asked the attorneys if they asked this witness whether she actually saw votes changed. As the judge describes their reaction, “The Court was met with silence.”

These are the affidavits those clinging to election fraud beliefs have been caterwauling about as unconsidered by the courts.

POWELL’S DOMINION LAWSUIT PLEADINGS EVIDENCE IMPROPER PURPOSE

One of the elements for sanctions requires that the lawsuit have been filed for an “improper purpose.” Judge Parker presents six reasons detailing the improper purposes of the lawsuit. However, the most entertaining has to be Sidney Powell being compelled to eat her own words in the defamation lawsuit filed by Dominion against her.

Mere opinions are not actionable defamation. Thus, if I say that I believed a particular movie stunk, that’s not defamatory (no matter how good the movie is deemed to be) because it was opinion, not fact.

In the Dominion lawsuit Powell claims the statements against Dominion she made in pleadings and briefs filed in this case were “opinions” which “reasonable people would not accept . . . as fact.” Seeking to protect herself from a defamation allegation Powell argued that her statements to the United States District Court in Michigan were “political” in nature, to support her candidate and thereby protected by the 1st Amendment. Judge Parker quotes the following from Powell’s motion to dismiss the Dominion lawsuit against her:

“Given the highly charged and political context of the statements, it is clear that Powell’s statements were made as an attorney-advocate for her preferred candidate and in support of her legal and political positions. The highly charged and political nature of the statements underscores their political and hence partisan nature.”

In an effort to get the massive Dominion lawsuit against her dismissed, Powell describes her own filings in Judge Parker’s court as sometimes “vituperative, abusive and inexact” “political speech,” “inherently prone to exaggeration and hyperbole” that “reasonable people would not accept.”

Such admissions obviously make it difficult to argue before Judge Parker that the allegations were reasonable and filed in good faith. Further, the 1st Amendment does not protect attorneys from filings in court that are not reasonable. Judge Parker makes this clear:

It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences. Although the First Amendment may allow Plaintiffs’ counsel to say what they desire on social media, in press conferences, or on television, federal courts are reserved for hearing genuine legal disputes which are well-grounded in fact and law.

THE AMAZING SPIDERMAN SAGA

Another reason establishing the improper purpose of Plaintiffs counsel is also the entertaining story of “Spider/Spyder.” Plaintiffs pleadings included an affidavit from a mysterious figure identified only by the codename “Spider” or “Spyder.” In Spider/Sypder’s affidavit he claimed to be “a former electronic intelligence analyst with 305th Military Intelligence” battalion and a “US Military Intelligence expert.” The Plaintiffs insisted that his super secret identity was so incredibly sensitive that the court must grant the indulgence of his name remaining unknown. Spyder/Spider’s affidavit was full of blockbuster allegations, to include that American election security was “certainly compromised by rogue actors, such as Iran and China.”

As it turns out this James Bond style figure turned out to be Joshua Merritt, a mild mannered IT consultant from Dallas. He did indeed serve a few years in the military, as a mechanic. His only connection to the 305th Military Intelligence Battalion (which is merely a training unit in Arizona) was dropping out of military intelligence school there.

As you can imagine, Judge Parker found this misrepresentation of Merritt’s expertise, used to justify concealing his identity, disturbing. The cynical might even conclude that it was a deliberate ploy to avoid revealing their expert was no expert at all. In fact, Judge Parker described the feeble efforts of the attorneys to explain this away as “dishonest.” The judge concluded the Spiderman discussion as follows:

“Plaintiffs’ counsel’s decision to not make clear “the full story” about Merritt not completing military intelligence training was for the improper purpose of bolstering their star witness’ expertise and misleading the Court, opposing counsel, and the world into believing that Merritt was something that he was not.”

Given that, mere sanctions seems to be letting these attorneys off easy. Why Judge Parker did not make a criminal referral for perjury and subornation of perjury is something I do not understand.

The imposed sanctions are strong. They include:

  • The attorneys must pay the Detroit’s and Michigans costs for defending against the lawsuit.
  • The attorneys must complete 12 hours of continuing legal eduction on the subjects of pleading standards and election law. This must be completed within six months of the decision.
  • The court will send a copy of the decision to “the appropriate disciplinary authority for the jurisdiction(s) where each attorney is admitted, referring the matter for investigation and possible suspension or disbarment.” Ouch.

Judge Parker then lists nine attorneys this will impact and the State Bar disciplinary jurisdictions that shall be contacted. For the record, they are:

1. Sidney Powell — Texas

2. L. Lin Wood — Georgia

3. Emily Newman — Virginia

4. Julia Z. Haller — the District of Columbia, Maryland, New York and New Jersey

5. Brandon Johnson — the District of Columbia, New York, and Nevada

6. Scott Hagerstrom — Michigan

7. Howard Kleinhendler — NewYork and New Jersey

8. Gregory Rohl — Michigan

9. Stefanie Lynn Junttila — Michigan

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Keith

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80