Disputed Fact
Following the 2020 election, attorneys who pursued election-challenge litigation in Pennsylvania and other states faced sanctions motions and bar discipline that created documented deterrent effects on future filings. The Rule 11 safe-harbor provision — which permits withdrawal within 21 days of a sanctions motion to avoid liability — provides a structural mechanism under which sanctions threats can produce voluntary dismissals before factual records are developed; this dynamic played out in multiple post-2020 cases, including election challenges in which Pennsylvania defendants filed Rule 11 motions. Rudy Giuliani was suspended from practicing law in New York on an interim basis in June 2021 and disbarred by the New York Appellate Division, First Department, effective July 2, 2024, for 16 counts of knowing false statements about election fraud across multiple states and forums; the court found his conduct “told numerous lies in numerous forums all designed to create distrust of the elective system of our country” and had done “immeasurable damage to our democracy.” Separately, the D.C. Bar’s Ad Hoc Hearing Committee recommended disbarment based specifically and primarily on Giuliani’s prosecution of Donald J. Trump for President, Inc. v. Boockvar, 502 F. Supp. 3d 899 (M.D. Pa. 2020), finding he violated Pennsylvania Rules 3.1 and 8.4(d) by “filing a lawsuit seeking to change the result of the 2020 presidential election when he had no factual basis” and that the “frivolous lawsuit attempted unjustifiably to disenfranchise hundreds of thousands of Pennsylvania voters”; the D.C. Board on Professional Responsibility affirmed the disbarment recommendation in May 2024. Notably, the D.C. disciplinary proceedings did not involve a challenge to Act 77’s constitutionality; Giuliani’s Pennsylvania claims concerned observational barriers, notice-and-cure procedures, and alleged fraud. A separate challenge to Act 77 — filed by different plaintiffs in McLinko v. Commonwealth — was sustained by the Pennsylvania Commonwealth Court on January 28, 2022, which held Act 77 violated the Pennsylvania Constitution; that ruling was reversed by the Pennsylvania Supreme Court on August 2, 2022 (5-2), which upheld Act 77. Regarding federal oversight of election-fraud complaints in Pennsylvania, former U.S. Attorney for the Eastern District William McSwain stated in a June 9, 2021 letter to President Trump that he had been directed to route serious election-fraud allegations to the Pennsylvania Attorney General rather than independently investigate; former AG Barr disputed this characterization, and AG Shapiro’s office reported receiving no referrals from McSwain’s office.
Citations
Fed. R. Civ. P. 11(c)(2) (21-day safe-harbor provision); see O’Rourke v. Dominion Voting Sys, No. 20-cv-3747 (D. Colo.), ECF sanctions order (Aug. 3, 2021) (discussing Rule 11 safe harbor and voluntary dismissal of Pennsylvania defendants before sanctions motion was filed), https://electionjudgments.org/api/files/16383039780381unn4o1oxzt.pdf (court noting “Plaintiffs voluntarily dismissed the Pennsylvania Defendants from the case within the time provided under the safe-harbor provisions of that Rule”).
See SMU Law Review Forum, Insurrection-Proofing the Courts: Judicial Tools to Protect the Legal Profession, at 4–8 (2024), https://scholar.smu.edu/cgi/viewcontent.cgi?article=1068&context=smulrforum (documenting Rule 11 sanctions imposed in post-2020 election litigation); King v. Whitmer, 556 F. Supp. 3d 680 (E.D. Mich. 2021) (sanctions against nine attorneys; affirmed in part by Sixth Circuit, as detailed in prior session citations).
McLinko v. Dep’t of State, 244 & 293 M.D. 2021, 270 A.3d 1243 (Pa. Commonwealth. Ct. Jan. 28, 2022) (Act 77 held unconstitutional), reported by WHYY (Jan. 28, 2022), https://whyy.org/articles/pa-commonwealth-court-tosses-no-excuse-mail-voting-law-appeal-expected-quickly/ https://whyy.org/articles/pa-commonwealth-court-tosses-no-excuse-mail-voting-law-appeal-expected-quickly/ ; McLinko v. Dep’t of State, J-18A–E-2022 (Pa. Aug. 2, 2022) (reversed; Act 77 upheld 5-2: “we find no constitutional violation”), https://www.pacourts.us/assets/opinions/Supreme/out/j-18a-e-2022mo.pdf ; Democracy Docket summary, https://www.democracydocket.com/alerts/pennsylvania-supreme-court-upholds-no-excuse-mail-in-voting-law/ .
Matter of Giuliani, 2021-00506 (N.Y. App. Div. 1st Dep’t Jul. 2, 2024) (disbarment order: “respondent told numerous lies in numerous forums all designed to create distrust of the elective system of our country in the minds of its citizens”; “immeasurable damage to our democracy”),
https://www.nycourts.gov/courts/ad1/calendar/List_Word/2024/07_Jul/02/PDF/Matter%20of%20Giuliani%20(2021-00506).pdfhttps://www.nycourts.gov/courts/ad1/calendar/List_Word/2024/07_Jul/02/PDF/Matter%20of%20Giuliani%20(2021-00506).pdf. The New York interim suspension was ordered June 24, 2021, pursuant to Judiciary Law § 90(2) and 22 NYCRR 1240.9(a)(5)
In re Giuliani, D.C. Bar Ad Hoc Hearing Committee Report and Recommendation at 2, 28, 36–37 (Jul. 7, 2023) (“He violated Pennsylvania Rule 3.1 by filing a lawsuit seeking to change the result of the 2020 presidential election when he had no factual basis”; “Respondent’s frivolous lawsuit attempted unjustifiably… to disenfranchise hundreds of thousands”; “Mr. Giuliani’s effort to undermine the integrity of the 2020 presidential election has helped destabilize our democracy”), https://www.justsecurity.org/wp-content/uploads/2023/07/Giuliani-dc-bar-committee-report-july-7-2023.pdf ; D.C. Board on Professional Responsibility disbarment recommendation (May 31, 2024), as reported by Democracy Docket, https://www.democracydocket.com/news-alerts/dc-board-recommends-disbarment-for-rudy-giuliani-over-2020-election-lies/.
Letter from William M. McSwain to Donald J. Trump (Jun. 9, 2021) (“I was also given a directive to pass along serious allegations to the State Attorney General for investigation — the same State Attorney General who had already declared that you could not win”), as published and analyzed in Philadelphia Inquirer (Jul. 14, 2021), https://www.inquirer.com/politics/donald-trump-bill-mcswain-pa-2020-election-letter-20210714.html ; Politico (Jul. 13, 2021), https://www.politico.com/news/2021/07/13/barr-election-fraud-claims-499519 (Barr: “I never told him not to investigate anything”; Shapiro’s office: “received no direct referrals from Mr. McSwain’s office”). McSwain’s letter attributed the directive to route a specific complaint — involving Delaware County USB drives — to AG Shapiro, not a blanket prohibition on federal investigation