Similarly, the rules governing lawyers’ professional behavior have created an odd split screen in the Trump campaign’s postelection work. Trump’s lawyers spin outlandish theories about massive election fraud at press conferences and on television, but make far more limited claims in court. “This is not a fraud case,” Rudy Giuliani acknowledged to Judge Brann during a hearing in the Pennsylvania certification case—only to then hold a press conference two days later in which he continued to peddle baseless claims of fraud alongside fellow Trump attorney Sidney Powell. (The campaign later announced that it had cut ties with Powell, who has claimed—without evidence, it should go without saying—that Georgia Governor Brian Kemp was bribed to rig his state’s vote as part of a conspiracy involving the CIA and the deceased Venezuelan President Hugo Chávez.)
Jeffrey Parness, who has written extensively on the rules governing attorney misconduct, suggested to me that judges could still take action against Trump’s lawyers if any of the remaining lawsuits step over the line. Judges will not want to be viewed “as someone who’s not concerned” by lawyers filing frivolous suits, Parness said. Most relevant to the current litigation may be Rule 11 of the Federal Rules of Civil Procedure, under which judges can sanction attorneys who make legally or factually meritless claims in court. Judges could order lawyers to pay fines to the court or to take legal-education classes, or even refer them to state bar associations for discipline. In the view of some experts, it’s past time for courts to take such actions: Writing in Slate last week, four legal-ethics experts argued that “the disciplinary case against certain of Trump’s lawyers is strong.”
But the road toward this kind of sanction is typically a long one, with discipline meted out toward the end of a case—if at all. “I do not expect to see state bars be first movers on these issues,” Carissa Byrne Hessick, a law professor at the University of North Carolina, told me. “They generally avoid taking actions that can be seen as political.” Courts may be hesitant as well. “Judges are extremely reticent to sanction lawyers in election-law cases, because they don’t want to look political,” said Leah Litman, who teaches law at the University of Michigan and has argued that elite lawyers have proved unwilling to hold their colleagues accountable for “facilitating the breakdown of norms that are integral to our constitutional system.” If courts do nothing, Litman told me, they are “enabling these gross excesses and abuse of our political processes.”
At this point, though, even if judges or state bar associations do hand down sanctions against lawyers involved in these cases, those repercussions will be too little, too late. The president is busy creating a parallel world for his supporters in which he never lost the election and Joe Biden is not the rightful leader of the United States—what Vox’s Ezra Klein termed “an autocracy-in-exile.” Already, far-right news networks such as One America News and Newsmax are profiting from this effort, siphoning viewers away from Fox News by enthusiastically embracing Trump’s claims of voter fraud. Half of Republicans already believe that Trump triumphed over Biden. “That press conference was the most dangerous 1hr 45 minutes of television in American history,” Chris Krebs, the former cybersecurity official fired by Trump for refusing to lie about the 2020 election’s integrity, tweeted of Giuliani and Powell’s appearance last week.