Criminal and civil penalties, where justified and warranted, are one of the best tools available for protecting our democracy.
Right now, federal prosecutions of Capitol rioters are getting the most attention. Prosecutors worked through the small fry first, who mostly got fines and probation (a few got short jail sentences), and we’re just now beginning to see the violent rioters get years-long prison terms.
All of this is good. These people violated our civil rights by trying to overthrow a valid election by illegitimate and illegal means.
Meanwhile, an Arizona judge who threw out a defamation lawsuit against a former state Democratic legislator brought against her by three Republican politicians — including two notorious characters who attended the Capitol riot, if not participated in it — now says they have to pay her $75,000 of legal expenses (see story here).
He judge concluded the lawsuit was a stunt, and was intended to harass the Democrat.
This saga began January 12, 2021, when every Democratic member of Arizona’s legislature signed a letter asking the FBI to investigate the “involvement, encouragement, or participation” of four Republicans “in connection with the events of January 6th,” including the three who in February 2021 sued state Rep. Charlene Fernandez, and only her, for signing the letter.
Their legal complaint filed in court was loaded with irrelevant references to Barack Obama, Hillary Clinton, and the border crisis: Talking points that appeared to be lifted verbatim from some rightwing blog or political speech. That didn’t help their cause. Neither did lying about where they were on Jan. 6.
As Raw Story notes,
“Footage reviewed by the Arizona Mirror has shown that Kern was closer to the Capitol than he said he was, and he was recorded on the Capitol grounds while violent clashes with police were still ongoing. Finchem, too, was much closer to the Capitol … than he claimed. Finchem has insisted that he never got within 500 yards of the Capitol building, but Getty footage … shows Finchem walking directly in front of the east steps at the Capitol after pro-Trump rioters had already broken through a series of barricades and police lines, and then smashed their way into the Capitol building.”
Dismissing the lawsuit was a slam-dunk; the judge ruled the letter “was clearly protected both by the right to free speech and the right to petition the government, as guaranteed by the First Amendment to the United States Constitution and by the corresponding provisions of Arizona’s Constitution.” That was in April 2022.
In August 2022, in his ruling that former state GOP Rep. Anthony Kern, GOP congressman Paul Gosar, and GOP secretary of state nominee Mark Finchem have to reimburse Fernandez’ legal bills, the judge was unsparing in his criticism of their motives. He wrote,
“Plaintiffs brought their claim without substantial justification, meaning that it was groundless and not made in good faith. … It very much appears that a significant portion of the contents … were written for an audience other than the assigned trial court judge. . .. The Court finds that Plaintiffs’ lawsuit against Defendant was brought for an improper purpose, having been filed against a political opponent primarily for purposes of harassment.”
So, they have to pay up. (It should be noted he only sanctioned the plaintiffs, not their lawyers, although he had some caustic words for them, too.)
In America, litigants usually pay their own legal costs. There are some exceptions, as when a statute allows a plaintiff to recover attorneys fees (e.g., consumer protection laws), or contract language entitles a party to legal expenses (e.g., for breach of contract or in event of loan default).
Separate and apart from that, federal and state court rules also give judges discretion to award attorney fees to victims of abusive lawsuits (e.g., Federal Rule of Civil Procedure §11; Washington Civil Rule §11, Arizona Revised Statutes §12-349 and Civil Rule §11).
It’s not easy to get. Merely losing a lawsuit won’t trigger the sanction. For that to happen, the lawsuit must be baseless and/or brought solely to vex or annoy the defendant. That’s what happened here.
All three of these characters are election deniers. Gosar and Finchem also were at the Capitol on Jan. 6, 2021, egging on a violent attempt to overthrow our government and possibly kill some of its leaders.
Crimes were committed that day, and over 800 participants are being prosecuted by federal authorities. The letter by Arizona Democrats didn’t accuse them of crimes; it only asked the FBI to investigate their involvement in the lawless events of that day. There was a reasonable factual basis for the request; they were involved in some fashion or other. It’s noteworthy they’ve been dishonest about what that involvement was.
However, the award of attorney fees to Fernandez is not punishment for their disloyalty to our nation’s democratic principles. It simply makes whole the victim of their retaliatory harassment. It says the courts can’t be used for that purpose. That’s not new; it’s a longstanding principle of our legal system.
But it also serves a larger purpose in the overall scheme of things. Sanctioning these individuals is part of a bigger picture of enforcing the rule of law in the wake of the GOP’s broad-based frontal assault against our democracy. A speed limit on a roadway means nothing if it isn’t enforced. Likewise, the Constitution and laws are useless words on paper unless they’re enforced.
The actions of the Jan. 6 rioters and Trump coup plotters are not to be confused with the civil disobedience against unjust laws which, throughout of history, have impelled progress and social change, such as the Northerners who harbored runaway slaves, or Rosa Parks’ refusal to move to the back of the bus.
Nothing about the GOP’s multifaceted attempts to overthrow the 2020 election was just, noble, or admirable. The American people made their choice on November 3, 2020, and the Republican Party and its elected officials, and Trump and his followers, were duty-bound to respect it. They were entitled to challenge election results through recounts and court challenges, had the opportunity to do so, and exercised those rights in a number of states. What they did next violated their duty to the laws governing our society, and the rights of their fellow citizens.
That’s why all this — the investigations, prosecutions, public hearings, and legal rulings, including this one — is for the common good, necessary, and benefits us all.