By Bob Christie
Capitol Media Services
PHOENIX -- Nationally known constitutional lawyer Alan Dershowitz pleaded with a federal judge in Phoenix on Wednesday not to find him financially liable for sanctions levied against lawyers who filed what the judge ruled was a frivolous lawsuit on behalf of two failed Republican candidates.
Dershowitz, a retired Harvard Law School professor who has practiced law for 60 years, told U.S. District Judge John Tuchi that he was only a consultant in the case, despite being listed as counsel on court pleadings carrying his electronic signature.
Tuchi in December had ordered Dershowitz and the two other attorneys in the case to pay the fees racked up by Maricopa County for defending the case.
The lawsuit was brought last year by GOP governor candidate Kari Lake and secretary of state candidate Mark Finchem and sought to require all ballots in the 2022 election in which they were running be hand-counted based on unproven claims that machine counting can produce inaccurate results.
Tuchi dismissed the case in August after ruling that the claims were backed only by "vague'' allegations about electronic voting systems generally.
Those lawyers, Andrew Parker of Minnesota and Kurt Olson of Washington, D.C. tried Wednesday to get Tuchi to throw out some of the nearly $140,000 in fees the county wants them to pay for bringing the lawsuit.
But the majority of the hearing was consumed by questioning of Dershowitz and arguments over whether he, too, should be liable for those costs.
Dershowitz said he insisted on being listed as "of counsel'' on court filings in order to indicate to the court his limited role.
But that distinction exists only in law firms, not court filings. And he said his only job was to raise a single constitutional argument in the case -- the potential for future abuses based on the unwillingness of voting machine companies to disclose the inner workings of their equipment -- and he was not involved in the issues that drew the ire of Tuchi and resulted in the sanctions.
But Tuchi noted that only three of 15 court filings even made that distinction, and that Dershowitz was listed as counsel -- sometimes lead counsel -- in the other court filings. And he noted that he was granted court permission to practice in Arizona to participate in the case.
"I simply didn't know I was going to be listed as counsel and I'm furious about it,'' Dershowitz told the judge.
Lake and Finchem were among Republican candidates across the country who embraced former President Donald Trump’s lies that elections in Arizona and elsewhere are rife with fraud.
Dershowitz, however, said that he does not buy into that and was not trying to overturn the 2022 election. In fact, he said, he's a liberal Democrat who said he has never voted for a Republican for president.
"I do not like Miss Lake, I would never vote for her,'' Dershowitz told Tuchi. "I was rooting for her opponent and I think the results of the election were absolutely correct and I’m glad the Democrat won.''
But Dershowitz said he participated in the case on behalf of her and Finchem because he believes the Constitution requires that people or companies that perform government functions -- like firms that make vote-counting machines -- to be as transparent as the government must be.
At the heart of the hearing over sanctions is that attorneys are required by court rules not to sign on to factual allegations they are aware are not true. But Tuchi said that’s exactly what the lawsuit did by claiming that Arizona vote-counting machines produced inaccurate results and that there were no paper ballots to check their results.
In fact, the machines used in Arizona count physical ballots marked by voters and the machines that tabulate the results are certified and publicly checked for accuracy before and after elections. Hand-count audits of a sample of physical ballots are then performed in each county to verify the results.
Tuchi closely questioned Dershowitz about his knowledge of the rules of court which require lawyers not to file frivolous lawsuits and his role in reviewing court filings. And he wondered whether Dershowitz had read the rules for admission to practice law in local courts, as he did after the court clerk removed his name for the case for not doing so.
Dershowsitz said several times he did not recall specifics about reading court filings or participating in a phone call with the county's attorneys.
"The court will have to excuse me -- I’m almost 85 years old, I’ve had four strokes, and my memory is not what it was when I was 25 years old,'' he said at one point.
But Dershowitz, one of the nation’s pre-eminent constitutional law experts, said he did not give the OK for his signature to appear on some documents. He also said repeatedly that he would never have signed on to factual allegations that he knew were not accurate, and that he never agreed to take on that role.
He said he does not have a staff or run a law office and only provides analysis of constitutional issues on cases he is involved in. His only job, Dershowitz said, was to give people advice.
"I acted in absolute good faith,'' he told the judge. "I don’t have a law firm behind me. I am just myself.''
But Emily Craiger, who represents Maricopa County, said Dershowitz was "trying to rewrite history'' by distancing himself from the court filings he himself signed -- and trying to avoid the court’s sanctions.
"Mr. Dershowitz signed his name to these pleadings,'' Craiger said. "Signatures have meaning in the court of law and attorneys are require to understand that.''
But Parker backed up Dershowitz’s contention that he did not have a lead role in the case and wasn’t responsible for reviewing all the pleadings to ensure they did not violate court rules.
"He didn’t do any investigation into the facts.'' he said.
"That was our responsibility and I was lead counsel on this case,'' Parker told the judge. "And I take full responsibility.''
But Parker also said he disagrees with Tuchi's December ruling that found he and the other lawyers for Lake and Finchem acted in bad faith.
"Frankly, I don’t think we did anything wrong, nor did we misrepresent anything to this court.''
Dershowitz’s lawyer, Dennis Wilenchik, urged the judge to release his clikent from the sanctions finding. He said Dershowitz may have made a mistake by not clarifying his role to the court, but that fairness requires him not to be penalized after a distinguished legal career.
"I fail to understand what is served here by taking an honorable man like this and harming his career for obviously something this is innocently done,'' Wilenchik told the judge.
Tuchi said he will consider the arguments and testimony and then issue a decision on the county's fees -- and whether to hold Dershowitz responsible.
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