• Show Notes

Dear Reader,

I am not done commenting on the Kraken lawyers. You know who I’m talking about. These legal eagles include Trump’s election attorneys, Sidney Powell and Lin Wood, among others. The Kraken, according to Scandinavian folklore, is a humongous squid-like sea monster that rises up from the depths of the ocean to eat its enemies. But the term that now has come to embody this hapless and ridiculous confederacy of dunces was not first invoked by a critical Twitter troll to mock their efforts to overturn the election. No. Last November Ms. Powell herself injected it into the discourse when she appeared on Fox Business for an interview with Lou Dobbs and said this about her plans to undo the election result: “I am going to release the Kraken.” That is what social media types today call a self-own.

Because, as everyone knows, that was some subpar Kraken. Every single suit failed. Put another way: Snap, that Kraken didn’t pop. This happens sometimes. The problem is that many legal experts (and now a federal judge) question the ethics of filing those suits, rife with mistakes and falsehoods and unvetted affidavits, in the first place. The legal filings were so deficient that lawyers for the city of Detroit, where one federal lawsuit was brought by the Kraken, moved for sanctions under Rule 11 of the Federal Rules of Civil Procedure. To a layperson, Rule 11 might sound like legal arcana. But to even the most junior or middling lawyer, the specter of Rule 11 sanctions looms like a professional guillotine. Such sanctions are rarely imposed because in the real world judges don’t relish punishing litigators, but every lawyer knows that the suits they sign must pass some basic legal muster – lies and innuendo and wishful allegations don’t suffice. And so this past Monday, Judge Linda Parker of the Eastern District of Michigan oversaw a very long hearing on the question of comeuppance for the Kraken.

It did not go well for the putative sea monsters. Perhaps unsurprisingly, it turned into a spectacle. You would think that on the eve of potentially being punished by a federal District Court judge, which punishment might include a financial penalty and a referral to state bar authorities, the Kraken might have approached the proceeding with competence or contrition. They did neither. The Kraken lawyers, it seems, hired other Kraken lawyers for their defense.

This is in the first paragraph of Rule 11: “Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name.” This is a basic requirement of accountability; lawyers are officers of the court and are professionally responsible for the claims they make in formal documents. Court documents can’t be filed anonymously or under a pseudonym. When claims of impropriety arise, the judge needs to know whom to scrutinize.

What was one of the legal arguments the Kraken’s Kraken made to wiggle out of responsibility? Believe it or not, they pointed out that some of the relevant filings were not signed in the traditional manner but were, in the age of electronic submissions in a pandemic, typed as: /s/. Seriously. They literally argued that they technically hadn’t signed the pleadings. To wit: “Typewritten name is not signature for purpose of Rule 11.” On this absurdity, the Kraken tried to avoid accountability. That didn’t fly.

Next, after the July 12th hearing was set, Sidney Powell and others tried to get out of attending, though the court appearance required no travel because with COVID it would be remote. This odd and cowardly ploy did not fly either.

But one of my favorite arguments made by counsel for the Kraken was that, under the First Amendment’s protection of free speech, lawyers essentially have the right to make any argument they want and “could not be subjected to sanction.” That would turn centuries of sanctions jurisprudence, not to mention defamation law, on its head. But that’s not the kicker. Generally, lawyers cite to precedents for propositions of law, and that’s all the more important when the proposition is preposterous on its face. Counsel here cited no cases. Why? They gave this explanation: “The U.S. Supreme Court cases that support this argument are just too numerous to mention, and any attempt to string cite them here would be insulting to all involved.” That may be the most disingenuous and childishly stupid sentence I’ve read in a brief, and I’ve read thousands. Judge Parker said, reassuringly, that she wouldn’t be insulted by a citation or two. None was forthcoming.

On top of incompetent arguments, the hearing showcased a crack in Kraken solidarity. Trump lawyer Lin Wood spent most of his time bellowing that he had nothing to do with the complaint – neither drafted it, reviewed it, nor participated in it. That spoke a volume or two about the propriety of the complaint in question. Would this defense work? Well, it was considered dubious because Wood’s name appeared on the cover page of the filing (remember the Rule 11 provision quoted above?), but Wood claimed he did not give permission to use his name and there was a debate about this and it devolved and . . . good grief, remember we are talking about legal counsel to the former President of the United States of America. Insert head exploding emoji here.

Mr. Wood, I will also note, lost some credibility after the hearing. The man who went out of his way to disclaim knowledge, to disclaim participation, to deny any role whatsoever in the drafting of the dubious complaint — presumably to avoid court sanction — adroitly subjected himself to sanction from the same court by posting video from the proceeding on the encrypted app, Telegram. How clear was the court’s rule about video? This clear: “Taking photographs or video recordings in connection with any Judicial Proceeding (including any participants in a Judicial Proceeding while they are in a courtroom or its environs), and the recording or broadcasting of Judicial Proceedings by radio or television or other means is prohibited.” He has since deleted the post.

Okay, I think I am now almost done talking about the Kraken lawyers.

A few weeks ago, George Conway wrote a piece for the Washington Post giving some credit and thanks to high-ranking administration lawyers, such as AG Bill Barr and Deputy AG Jeffrey Rosen, who – whatever other sins they committed – resisted the worst Trump entreaties. As Conway recounts, Barr literally called “bullshit” on Trump’s election fraud claims, and Rosen refused to use DOJ to overturn the election.

His piece was not about the Kraken crew. But given their audaciously flawed complaints, their evidence-free allegations, their ruining whatever reputations they once enjoyed, and their mind-blowing lack of integrity matched by the mind-blowing incompetence with which they defended their integrity, the opening line of Conway’s op-ed also holds true for Sidney Powell, et al.: “Donald Trump could never really count on the lawyers.”

And thank God for that.

My best,