Volume 35

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

by Blake W. Cowman

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.” The Trump team used a three-pronged strategy to raise these funds while striving to overturn the election results and bolster the defeated president’s political standing. The first prong was a legal campaign, where Trump-allied attorneys fled more than fifty lawsuits in key battleground states attempting to block the certification of election results. The second was a disinformation campaign, where Trump and allies utilized social media, traditional media, and legal flings to promote false notions of election fraud to sway public opinion. The final prong was a fundraising campaign, where Trump and others leveraged the fling 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. A federal judge called one of the frivolous lawsuits “a historic and profound abuse of the judicial process.”

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 sanctions are ineffective deterrents against election litigation abuse by Trump-aligned attorneys because those attorneys can rely on funds raised through the litigation to pay any sanctions. Instead, courts and disciplinary authorities should discipline attorneys with severe professional sanctions, like disbarment or suspension. 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 efficacy 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 election 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 propose one feasible way for courts to accomplish this and will analyze potential drawbacks and counterarguments to this approach.

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