Cash Cow: The Futility of Monetary Sanctions as a Deterrent for Post-Election Litigation Abuse

• Author: Blake W. Cowman
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., The College of Idaho (2020)
• Pages: 607-626

Cash Cow: The Futility of Monetary Sanctions as a

Deterrent for Post-Election Litigation Abuse

BLAKE W. COWMAN*

INTRODUCTION

In the two months after losing the 2020 presidential election, then-President

Donald Trump and his Republican allies raised a staggering $255.4 million for

their “Official Election Defense Fund.”

1

See Jemima McEvoy, Trump Raised $250 Million Since Election to Challenge Outcome—Here’s Where

Most of the Money Will Actually Go, FORBES (Jan. 31, 2021), forbes.com/sites/jemimamcevoy/2021/01/31/

trump-raised-250-million-since-election-to-challenge-outcome-heres-where-most-of-the-money-will-actually-

go/?sh=2ddaff5a8824 [https://perma.cc/F68D-CKQJ].

The Trump team used a three-pronged

strategy to raise these funds while striving to overturn the election results and bol-

ster the defeated president’s political standing. The first prong was a legal cam-

paign, where Trump-allied attorneys filed more than fifty lawsuits in key

battleground states attempting to block the certification of election results.

2

Colleen Long & Ed White, Trump thought courts were key to winning. Judges disagreed, ASSOCIATED

PRESS, Dec. 8, 2020, https://apnews.com/article/donald-trump-courts-election-results-e1297d874f45d2b14bc

99c403abd0457 [https://perma.cc/3PJVJ7FU].

The

second was a disinformation campaign, where Trump and allies utilized social

media, traditional media, and legal filings to promote false notions of election

fraud to sway public opinion.

3

See, e.g., Philip Bump, A Year of Election Misinformation from Trump, Visualized, WASH. POST (Feb. 11,

2021), https://www.washingtonpost.com/politics/2021/02/11/year-election-misinformation-trump-visualized/

[https://perma.cc/T62E-GQWV].

The final prong was a fundraising campaign, where

Trump and others leveraged the filing of frivolous lawsuits to raise millions of

dollars from Republican supporters.

4

The effort culminated on January 6, 2021,

when hundreds of Trump-aligned rioters attacked and breached the U.S. Capitol

while Congress was certifying Joseph Biden’s electoral college victory.

5

Philip Rocker, Bloodshed, WASH. POST (Oct. 31, 2021), https://www.washingtonpost.com/politics/

interactive/2021/what-happened-trump-jan-6-insurrection/ [https://perma.cc/JQL8-EXW3].

A fed-

eral judge called one of the frivolous lawsuits “a historic and profound abuse of

the judicial process.”

6

Courts can deter abuse of the judicial process through a host of statutes as well

as procedural and ethical rules. However, courts have not utilized these tools

effectively against Trump’s litigation abuses. This Note will argue that monetary

* J.D., Georgetown University Law Center (expected May 2023); B.A., The College of Idaho (2020).

© 2022, Blake W. Cowman.

1.

2.

3.

4. McEvoy, supra note 1.

5.

6. King v. Whitmer, 556 F. Supp. 3d 680, 688 (E.D. Mich. 2021).

607

sanctions are ineffective deterrents against election litigation abuse by Trump-

aligned attorneys because those attorneys can rely on funds raised through the liti-

gation to pay any sanctions. Instead, courts and disciplinary authorities should

discipline attorneys with severe professional sanctions, like disbarment or sus-

pension. Part I of this Note will detail the 2020 post-election litigation efforts,

including the accompanying disinformation and fundraising schemes. Part II will

analyze court-issued monetary sanctions under Federal Rules of Civil Procedure

Rule 11, 28 U.S.C. § 1927, and courts’ inherent authority; application of these

rules in 2020 election litigation; and the effect of fundraising efforts on the effi-

cacy of those sanctions. Part III will analyze relevant Rules within the ABA’s

Model Rules of Professional Conduct and how they have been applied so far in

2020 election litigation. Part IV will argue that, when faced with frivolous elec-

tion litigation that operates as a fundraising scheme, courts and disciplinary

authorities should favor attorney discipline under the jurisdiction’s professional

rules over monetary sanctions to deter future misconduct. It will continue to pro-

pose one feasible way for courts to accomplish this and will analyze potential

drawbacks and counterarguments to this approach.

I. BACKGROUND

From the minute that the final polls closed to the minute Joe Biden was inaugu-

rated, more than 50 Trump-backed lawsuits were filed and argued in key battle-

ground states across the country.

7

This prong of Trump’s effort was unsuccessful

at leveraging courts to overturn states’ election results.

8

Federal and state courts

at all levels overwhelmingly rejected Trump and allies’ attempts to prevent certi-

fication of election results, as nearly all of the suits lacked factual evidence or

sound legal claims.

9

The Supreme Court twice denied conservative efforts to

block the certification of election results in battleground states.

10

And some lower

courts expressed shock at the lack of factual evidence and the incredible form of

relief sought by Trump and his allies.

11

While the first prong may have been unsuccessful in using courts to substanti-

ate claims of voter fraud, the second prong leveraged courts to push a public nar-

rative of voter fraud as part of its disinformation campaign. The strategy likely

attempted to borrow credibility from the judicial system, as Americans have

7. See Long & White, supra note 2.

8. See id.

9. See, e.g., Wood v. Raffensperger, 501 F. Supp. 3d. 1310, 1331 (N.D. Ga. 2020) (holding that “this Court

finds no basis in fact or in law” to grant relief that would “breed confusion, undermine the public’s trust in the

election, and potentially disenfranchise of (sic) over one million Georgia voters”); Donald J. Trump for

President, Inc. v. Sec’y of Pa., 830 Fed. Appx. 377, 391 (3d Cir. 2020) (writing “[v]oters, not lawyers, choose

the President”); Feehan v. Wis. Elections Comm’n, 506 F. Supp. 3d 596 (E.D. Wisc. 2020) (writing “[f]ederal

judges do not appoint the president in this country. One wonders why the plaintiffs came to federal court and

asked a federal judge to do so”).

10. Texas v. Pennsylvania, 141 S. Ct. 1230, 1230 (2020); Kelly v. Pennsylvania, 141 S. Ct. 950, 950 (2021).

11. See Wis. Voters Alliance v. Pence, 514 F. Supp. 3d 117, 121-22 (D.D.C. 2021).

608 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:607