25 March 2021

A Smattering of Elemental Strategy

So, Sidney Powell (or at least her counsel) thinks that Dominion's libel complaint against her should be dismissed because no reasonable person would have believed the factual assertions she made (PDF, large document) ("MTD") supporting The Orange One's "massive voting fraud!" narrative? A narrative that specifically named Dominion's machines not as "vulnerable"1 but instrumentalities of fraud? This collection of modern major-generals has — as is all too typical among political-operative-type lawyers — no smattering of elemental strategy at all.

First, and perhaps most legal-neeperyish, this is the wrong motion. Leaving aside the mischaracterization of Iqbal concerning what it incorrectly captions as a "Standard of Review" (it is, instead, a "Standard of Decision" — since this is in front of the District Court, there is nothing to "review" as of yet; that's for the appellate stage) (PDF at 34 logical|19 enumerated), there's a fundamental logical problem. A motion to dismiss cannot weigh evidence; in federal procedure, the only weighing of evidence takes place at trial. Compare Fed. R. Civ. Proc. 12(b)(6) (this motion), 12(c), and 56 with Fed. R. Civ. Proc. 52. And, logically, that is precisely what a claim that "no reasonable person would conclude that the statements [Powell made concerning Dominion] were truly statements of fact" (MTD 41–42|27–28) requires, despite the attempt to (mis)characterize this inquiry as a pure question of law immediately preceding that. Thus, on purely procedural grounds, this is an improper motion for which there is no good-faith basis in law (cf. Fed. R. Civ. Proc. 11(b), of which more anon). And the motion itself is logically inconsistent with the attempts to claim that this is all about "robust public debate" on matters of "interest" to the public, and the high values of the First Amendment: The motion itself would cut off "robust public debate" on matters of "interest" to the public like the scope and extent of any immunity from consequences extended to mouthpieces, and the standards of truthfulness expected from public officials, and perhaps most to the point the standards of conduct of members of the bar.

Second, the substance of this motion throws the client's future as a lawyer, umm, under the bus. Or at least under the Federal Rules of Civil Procedure and the Texas Disciplinary Rules of Professional Conduct, in the name of "dismissing" this lawsuit.2 This is a logical consequence of what Powell did with her not-understood-as-fact-by-any-reasonable-person assertions: She incorporated them as factual matters in pleadings before other courts. In federal court, this violates Fed. R. Civ. Proc. 11(b)(3), which requires that every paper or pleading signed by a lawyer contain only

[] factual contentions [that] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

If they could not be reasonably believed to be factual contentions, and they're identical to purported factual contentions included in legal pleadings signed by the same individual, We Have a Problem.

Perhaps more to the point in the abstract — but, given the profession's fundamental refusal to self-regulate, easily dismissed in practice — Powell's statements in multiple places (not just those identified in Dominion's complaint) and multiple pleadings (which are absent from the MTD, presumably relying upon purported "privileges" exempting legal papers from defamation claims) implicate:

  • Tex. Disc. R. Prof. Cond. 1.01, requiring competent representation (a complaint containing no factual allegations)
  • Tex. Disc. R. Prof. Cond. 1.02(c), prohibiting a lawyer from "assist[ing] or counsel[ing] a client to engage in conduct that the lawyer knows is criminal or fraudulent"
  • Tex. Disc. R. Prof. Cond. 3.01, requiring that a lawyer present only meritorious claims and contentions to a court
  • Tex. Disc. R. Prof. Cond. 3.03, requiring candor toward a tribunal (that is, can't lie to the court!)
  • Tex. Disc. R. Prof. Cond. 3.04(c)(2), prohibiting reference to material "that the lawyer does not reasonably believe… [will be] supported by admissible evidence" or assertions "of personal knowledge of facts in issue except when testifying as a witness"
  • Tex. Disc. R. Prof. Cond. 4.04, requiring respect for the rights of third persons (like all of those election officials)
  • Tex. Disc. R. Prof. Cond. 8.03, requiring self-reporting of professional misconduct
  • Tex. Disc. R. Prof. Cond. 8.04, prohibiting "misconduct" including breach of the disciplinary rules

which should at least start the ball rolling on, at minimum, an inquiry. But, realistically, won't, because the profession's "self-regulation" is largely illusory and perhaps most of all when it interfaces with politics.3

It's fairly clear that there was substantial underappreciation of strategy here. Unless, that is, the strategy in question involves subverting the course of justice in the name of political power, in which instance we're merely down to bad tactics… that just happen to be utterly inconsistent with the Rule of Law in general, the (stated, at least) values of the legal system in particular, and the rationale for the First Amendment invoked so enthusiastically in the MTD. Time to save the town! Fix bayonets! Forwaaaaaaard!4

  1. Every vote-counting system is, in some sense, vulnerable. It's trivial to prove it; and in the long history of elections, virtually every possible system to produce a result different from a hypothetical true-and-accurate count has been at least tried. (The irony that those that succeeded are less likely to be detected than those that failed has escaped much scrutiny.) The key question is whether the combination of actual, overt, intentional security measures and the field usage of the systems in question is systematically and/or manipulably vulnerable.
  2. Whether the MTD subjects Powell's lawyers (Messrs Kleinhendler, Binnall, and Joseph) to potential sanctions and/or ethics inquiry is itself an interesting question for another time. In the fundamental, logical sense, it's precisely parallel to the criminal-law "fruit of the poisonous tree" doctrine… and that, itself, requires considerable, careful thought. The MTD is on its face improper and fails to acknowledge its precondition — that determining whether a "reasonable person" might believe the specific statements at issue in their context does not require any weighing of evidence — and therefore fails of candor to the tribunal (Tex. Disc. R. Prof. Cond. 3.03) and fails to make a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law (Fed. R. Civ. Proc. 11(b)(2)). This is particularly curious in that the MTD does not cite either the Colorado or the DC anti-SLAPP statutes as grounds for dismissal (cf. MTD at 12–13|vii–viii) — the perhaps singular exception to the "weighing" problem, because anti-SLAPP statutes are ordinarily substantive and not procedural (see, e.g., Sherrod v. Breitbart, 843 F.Supp.2d 83, 84–85 (DDC 2012).
  3. As an example, consider the instance of Rod Blagojevich; the Illinois Bar didn't even open an inquiry until a year after Blago was impeached and removed from office by a nearly unanimous vote of the Illinois Senate, and didn't impose discipline for another nine years after that (dating corrected 31 Mar 2021). It's one thing to say "we're not going to hold a disciplinary hearing until the lawyer-defendant has exhausted his appeals" (of course, there's no appeal from an impeachment; any interference here would have been with the later, federal criminal fiasco); it's another entirely to refuse to even open an inquiry. That trade protection, self-interest, and machine politics then (and forever in the past, and to the present day) infect the process in Illinois is just particularly apparent doesn't make it particularly different. For example, I've been unable to find a Texas matter this century in which violating Tex. Disc. R. Prof. Cond. 3.01, without being intertwined with either client-harming financial misconduct or a defense/mitigation of substance-related impairment, led to significant discipline (my search hasn't been exhaustive, so there might be an exception).
  4. Of course, destroying a town to save it can't be done by draft-dodgers. Can it be done on behalf of draft-dodgers?