Lawyer in failed Arizona election lawsuit seeks pass on sanctions

PHOENIX — Famed attorney Alan Dershowitz wants to be excused from paying any sanctions in the failed lawsuit to require hand counts of votes, saying he really had nothing to do with the claims a judge rejected.

The former Harvard Law School professor acknowledged he was listed as one of the attorneys on the filings by Kari Lake and Mark Finchem seeking to outlaw machine counts. That ended when U.S. District Court Judge John Tuchi said their claims that using tabulators can produce inaccurate results were little more than speculation, backed only by “vague’’ allegations about electronic voting systems generally.

And Tuchi said the pair’s attorneys — but not the failed candidates for governor and secretary of state — are responsible for paying the legal fees incurred by Maricopa County in defending the lawsuit. The county has requested $141,690.

But in a new filing, the 84-year-old lawyer is saying that he should bear no part of that burden.

“I was asked to provide my consultation only on constitutional issues in lawsuits involving voting machines,” Dershowitz said in a declaration filed with the federal court by Jack Wilenchik, who he has retained as counsel in the legal fees dispute.

“My role was expressly limited to the potential for future abuses based on the unwillingness of voting machine companies to disclose the inner workings of their machines,” he continued.

“I helped to develop the following argument: When a private company is hired by the government to perform a quintessential government function such as vote counting, it cannot refuse to provide relevant information about the workings of its machines on the grounds of business secrets,” Dershowitz said. “I believed and still believe that this is a profoundly important issue that goes to the heart of future voting integrity.”

But the former Harvard law professor specifically said that he is not an expert on voting machines or, for that matter, the 2022 Arizona election. His role was limited to his expertise in constitutional issues, he said in the filing.

And Dershowitz specifically disavowed some news reports listing him as lead attorney in the case.

“Not only am I not Lake’s lead attorney, I have never met her and have no retainer agreement with her,” Dershowitz said of Lake. “My consulting agreement is with one of the lawyers.”

Wilenchik sought to distance his client from the whole lawsuit about why voting machines can’t be trusted in other ways.

“He did not participate in the drafting of the complaint or in any investigation leading up to the drafting,” the legal papers state. “Mr. Dershowitz did not author or file the pleadings or other documents filed in this case.”

And Wilenchik said his client does not recall authorizing his signature to any of the filings that do not list him as “of counsel,” a term he said refers to Dershowitz’s role as purely consulting.

What Dershowitz also hopes will excuse him from being assessed any part of the legal fees is the fact that Tuchi threw out the case before there ever was an actual hearing on the merits of the allegations. Instead, the judge concluded that just the legal claims themselves were based on false allegations and misrepresentations. And that was enough to convince Tuchi that the case should not go to trial — or even to let the Lake and Finchem legal team further pursue their allegations.

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“Given that the action did not proceed to discovery, there was no occasion for him to advocate on the singular constitutional issue for which he was retained as a consultant,” Wilenchik wrote of Dershowitz. And that, his attorney said, means nothing he did in his limited role in the case in any way extended the case or even was part of Tuchi’s decision to sanction the lawyers involved in filing the lawsuit.

Wilenchik told the judge there are other reasons not to assess financial penalties against Dershowitz.

Wilenchik said Dershowitz has “serious medical limitations on travel,” which is why he now holds himself out primarily as a consultant and advisor to other lawyers. And Wilenchik said that consulting practice is limited “with no active office, staff, or direct role in the trial of cases.”

And Dershowitz himself sought to reassure the judge that his role was limited to strictly the constitutional issues and not part of any political efforts.

“I am a liberal Democrat who as almost never voted for a Republican candidate,” he said.

Nor, Dershowitz said, is this some outgrowth over the continued claims by former President Donald Trump, who endorsed both Lake and Finchem, that his own election was stolen.

“I strongly believe that the 2020 election was fair and resulted in the correct outcome,” he said.

Attorneys Andrew Parker and Kurt Olsen, who were the lawyers who actually prepared the case for Lake and Finchem, filed their own objections to the county’s request for legal fees.

With the judge already having decided to impose sanctions, he limited what the lawyers could argue about the appropriateness of requested fees. What the county requested should be reduced, the lawyers say, because of fees were for “excessive time spent on tasks,” and they’re not recoverable.

The judge has not said when he will rule.

In imposing sanctions, Tuchi said Lake and Finchem and their attorneys never offered sufficient allegations, let alone any real evidence, to demonstrate the likelihood the votes of Arizonans would be incorrectly counted in the 2022 midterm election due to manipulation. And he said their lawyers failed to conduct the kind of inquiry that court rules require before filing a lawsuit, and forcing a court defense.

“Plaintiffs either failed to conduct the reasonable factual inquiry required (under court rules), or they conducted such an inquiry and filed this lawsuit anyway,’” Tuchi wrote. “Either way, no reasonable attorney, after conducting an objectively reasonably inquiry into the facts and law, would have found the complaint to be well-founded.”

Lake and Finchem are asking the 9th Circuit Court of Appeals to overturn Tuchi’s dismissal of the case and require him to allow the case to go to trial so they can present the evidence and arguments they say they have.