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DC Bar Disciplinary Hearing, Week of January 6-10 [1]
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Date: 2025-01-18
The week began with Harry MacDougald, who was the local counsel in the Georgia Pearson case. Like the majority of Byrne/Johnson’s witnesses, MacDougald is an old white man and a die-hard Trumper, MacDougald also represented Jeffrey Clark in the Georgia RICO case, arguing for the removal of Fani Willis.
MacDougald gave a review of the initial (2017) Curling v Kemp case, which then became Curling v Raffensperger, a case which can be considered a “precursor” to Pearson. Apparently, between the time Curling as originally filed and 2020, a previous system named Diebolt had been “banned” in Georgia. According to MacDougald, it was the Democrats in Georgia who were raising complaints about Dominion, then suddenly being OK with Dominion in 2020. Judge Totenberg (who heard Curling) had made findings that neither Diebolt nor Dominion had complied with state law, but she could not order relief because it was too close to the election.
Georgia elections have apparently been subject to challenges and investigations of vulnerabilities for decades. White men in Georgia (including some of Byrne’s witnesses) continue to complain about Stacy Abram’s challenge of her loss to Brian Kemp in the 2018 race for Governor. Abrams, however, was not alleging irregularities with machines or activities by malignant and unseen hackers, but by obvious efforts of Georgia’s power elites to suppress voter turnout in specific (i.e., Black and poor) communities. Powell chose Georgia as the place to file the first of the Kraken litigation, which may have calculated that Georgia’s already hostile and suspicious zeitgeist around elections made it a favorable place to start.
MacDougald’s main gripe was the “huge statistical difference” between the rejection rate of absentee ballot signature matches in 2020 compared to the previous election. The 1% rejection rate suggested (to him) that signature matching was not being done, because the rejection rate had previously been 4-8%.
MacDougald was contacted by Sidney Powell about working on the Pearson case on November 24th. At first he was “hesitant,” but decided that his experience in complex Section 1983 (violation of Constitutional rights by a government) litigation and service on the Georgia Election Board could be helpful. MacDougald recalled that there were a “lot of exhibits” and he was assembling and attaching them to pleadings at the 11th hour after a very long day. MacDougald claims he has “taught himself” statistics and didn’t see anything anomalous in the Briggs, Ramsland or other statistics-based affidavits.
MacDougald also graciously took the blame for a date being “cut off” of an exhibit due to a portrait versus landscape orientation glitch—even though he did not prepare the exhibit, he claims he was the last person to see it before everything got filed. Sidney Powell was the one who was circulating the affidavits. MacDougald characterized the affiants as “impressive” and his belief was that Powell’s team was communicating with the affiants. “I don’t believe Rus Ramsland’s team hires incompetent liars.”
MacDougald admitted that Merritt (Spider) compromised credibility with the statement about his military service, but the rest of his statement is “solid.” Merritt wanted to maintain anonymity because he was concerned about being “attacked by terrorists.” (My opinion is that some of these folks are genuinely paranoid, so it’s hard to tell if this is just a convenient justification.)
It was hard to tell whether MacDougald was re-litigating the election (pointing out every potential vulnerability) or mitigating the part of the attorneys facing discipline. He had a much better memory about details of election irregularities than who did what during the litigation. Most all of his communication was with Powell and/or Kleinhendler, although Haller was often copied in on it. He does not recall speaking with Lin Wood about the affidavits “pulled from [Wood’s] case.” MacDougald corroborated that a lot of the “evidence” was “shared” across unrelated cases.
Someone in Texas was supposed to be vetting the Venezuelan affidavits. The person in Texas turned out to be William Sessions, who appeared as local counsel in the Gohmert case. Sessions had apparently testified at Powell’s Texas bar discipline hearing, claimed that he had a lengthy interview and had determined that “the guy was credible.” Powell had let MacDougald know that the Texas Bar had taken depositions of Merrit and Sessions, in addition to Powell herself.
ODC got MacDougald to admit that the GA electors met on the prescribed date, but they had not been officially appointed (while arguing that the “phrasing is poor.”) MacDougald made the same argument about the objective of the “alternate electors” was to have them signed before the due date passed in the case of a favorable court ruling or other event that would have resulted in their miraculously becoming legitimate.
Hager asked MacDougald what could the motive be for a Republican Governor and Republican Secretary of State to either help or condone election irregularities that benefited a Democratic candidate. MacDougald said he “couldn’t get into their heads,” but said he knew Raffensperger was angry about some of Trump’s statements, including something “ugly about his wife.” MacDougald believed Raffensberger’s anger at the abuse he took was justified, but “he planted his flag on the hill that there was nothing wrong with the election, and that’s the hill they are going to die on.” MacDougald’s view is that that GA Governor and SOS were “hard-headed and won’t admit they made a mistake.”
On cross examination, ODC presented an unsworn declaration that MacDougald had spent “substantial and tedious efforts” organizing the exhibits (MacDougald had faced some kind of action from the GA bar, but the case against him was dismissed). MacDougald described spending a lot of time, but Haller had sent the affidavits to him at 6:30 pm, and he had to get the case filed by midnight. He had spent about 8 hours with the Complaint the night before. MacDougald said he had let his staff go home earlier, admitting that he shouldn’t have been handling something so tedious at a late hour with aging eyesight and without assistance.
Byrne/Johnson has totally dominated this hearing with a seemingly never-ending parade of witnesses, most who have either swallowed the MAGA Kool Aid or have subscribed to conspiracy theories around election vulnerabilities (i.e., they inherently distrust these systems, independent of Trump’s attempt to overturn the 2020 election). A lot of the testimony was cumulative, and frankly irrelevant.
Driscoll/Haller was finally able to present two witnesses. The first was Howard Kleinhendler, a New York attorney who served as the “manager” over the Kraken litigation. Howard Kleinhendler is a 1994 graduate of Temple University School of Law. He was admitted to the New Jersey Bar in December 1994 and to the New York Bar in January 1995. As of the date of this search (January 2025), Kleinhendler maintains good standing in both states. In addition to their testimony, both MacDougald and Kleinhendler are presented as examples of other attorneys involved in the Kraken litigation who have not been sanctioned.
In 2011, Kleinhendler was a Democratic candidate for the New Jersey General Assembly and also ran in 2014 for the U.S. House (3rd Congressional District of NJ). Kleinhendler’s Ballotpedia page touts his positions on (1) Improving Obamacare, (2) Ending corporate welfare, (3) Amnesty for undocumented workers, (4) Helping veterans and people affected by Hurricane Sandy (2012). So, there are indications that Kleinhendler possesses prosocial, public-service-motivated sentiments (or did at one time).
According to his LinkedIn page, Kleinhendler worked as an associate at the New York law firm of Kaye Scholer, LLP from 1994 to December of 2004, then became a partner at Wachtel Missry, LLP in 2004. Kleinhendler left Wachtel Missry at the end of 2019, opening his own solo practice at 369 Lexington Ave in New York City in January of 2020. According to Kleinhendler’s firm page, he represents “Fortune 500 companies and high net worth individuals” in various antitrust, real estate, partnership disputes, election law and white-collar criminal defense.
Since 2020, information has come out (mainly through Law360) about various lawsuits against Wachtel Missry involving a case that Kleinhendler handled while he was at the firm. A Florida landowner named Applestein retained Kleinhendler (who was then at Wachtel Missry) to represent him in a Virginia land sale beginning in 2013. At that time, Applestein was 81 years old. In 2014, Kleinhendler advised Applestein to reject an offer of $12.5 million. By 2015, Applestein’s health began to deteriorate, and he was eventually diagnosed with Alzheimer’s. In 2016, Kleinhendler organized his own entity to purchase the Virginia property called Virginia True Corporation, a clear conflict of interest. A deal to sell the property between Applestein and Virginia True for $12 million closed on April 27, 2017. Kleinhendler continued to represent both parties and never disclosed his conflict of interest.
A side deal Kleinhendler had with a couple of Virginia True’s investors went south, causing Virginia True to default on its loan and file for Chapter 11 in May 2019, leaving Applestein as an unsecured creditor owed $7.28 million. In December 2019 (around the same time Kleinhendler left the firm), Applestein sued both Kleinhendler and Wachtel Missry. There was inevitable side litigation with Wachtel’s legal malpractice insurer, as well as between Wachtel Missry and Kleinhendler as to who would eventually be liable. In September of 2024, a Florida jury found Kleinhendler liable for over $11 million in compensatory and $15 million in punitive damages, totaling over $26 million. Wachtel Missry was also on the hook for a much smaller damage award of $112,768.
So, in the context of a nascent, but potentially huge, lawsuit and breakup with his former law partners, Kleinhendler managed to connect with Sidney Powell in late 2020. Kleinhendler is named on all of the Kraken litigation, as well as the Gohmert v Pence case. The other lawyers on these cases who were involved in District of Columbia bar disciplinary hearings (Julia Haller, Brandon Johnson, and Lawrence Joseph) all identified Kleinhendler as the managing attorney who gave the others their assignments.
Kleinhendler testified as a witness for Julia Haller in the joint disciplinary hearing. The purpose of Kleinhendler’s testimony was mainly to mitigate Haller’s role in the Kraken cases, so questions did not dig too deeply into Kleinhendler’s behavior (the $26 million judgment never came up). One thing we learned (that is not on Kleinhendler’s LinkedIn or firm web page) is that he served 10 years as a Rabbi. Kleinhendler testified that he first met Powell, Haller, Emily Newman and other attorneys “investigating the 2020 election” at a hotel in Arlington, Virginia. He did not meet Johnson in person until sometime in 2021, as most communications were by email or over the phone or Zoom.
On cross exam, we find out that Kleinhendler had been co-counsel on a previous case with Giuliani, who had put him in touch with Powell. Kleinhendler testified that he started the work as a volunteer, but Powell did pay him. He submitted time sheets as an independent contractor and had “reduced my hourly fee.” Johnson was brought in on the case through Haller’s brother. Kleinhendler also testified that Powell had made them all communicate through a proton mail account and “use different names.”
Kleinhendler corroborated the general chain of command as presented by Haller and Johnson. Powell was in charge of “plugging into anomalies that had come to her attention,” and he was in charge of assigning the work. Haller was the main “complaint drafter” and Johnson was the main “brief writer.” According to Kleinhendler, Powell was “very involved” in drafting the Georgia complaint. Powell did a lot of the editing and was responsible for determining who to sue and who would be the representative plaintiff(s). For a time, Powell disappeared to an “undisclosed location,” which later turned out to be a plantation (yes, these white men still own plantations) of L. Lin Wood. Kleinhendler testified that he did not see the final Pearson complaint before it was filed.
Between November 16th and 21st, Kleinhendler believed his team was “helping the Trump campaign” investigate the election, and the operation was being run by Giuliani. However, Giuliani made a statement to the media on Sunday, Nov 22nd, that “Powell has nothing to do with the campaign.” This then changed everything, and they regrouped. Now the objective seemed to pivot from challenging the election on behalf of Trump to supporting the Republican slates of electors. They were also getting pressure from members of Congress who wanted to “push this forward.” Kleinhendler corroborated Haller and Johnson’s story about everything being a “team effort” and a lot of the work (including attorney signature blocks) was “cut and pasted” across the various litigation. Kleinhendler admitted he was responsible for the Spider and the Ramsland affidavits.
Kleinhendler officially withdrew from Powell’s legal team in July of 2022, after most of the Kraken attorneys were sanctioned by the Eastern District of Michigan and Powell faced defamation litigation from Dominion. A big question is why the New York Bar—who aggressively suspended Giuliani’s license before finally disbarring him—has done nothing about Kleinhendler—either for his part in the 2020 election cases OR for the Applestein matter.
I was unable to attend the testimony of Professor Stephen A. Salzburg, However, Professor Salzburg’s report is in the record, so I will take highlights from it. Salzburg is Haller’s expert witness on the subject of mitigation, arguing that Haller did not have primary responsibility for key decisions in the Kraken cases. Professor Salzburg is a law professor at George Washington University and Director of the National Trial Advocacy College at the University of Virgina.
Professor Salzburg acknowledges that the attorneys working on this litigation had a “sense of urgency” and genuine “good faith belief” in the work they were doing. He also acknowledges that the U.S. Sixth Court of Appeals found that sanctions were warranted because the plaintiffs had not taken advantage of the “safe harbor” the MI defendants had offered, giving them an opportunity to avoid sanctions by abandoning their “frivolous” claims.
Haller did not have a decision-making role and therefore had no authority to either accept or decline the safe harbor offer. Moreover, at the sanctions hearing, Haller was part of a joint defense, where Newman and Juntilla (who had their sanctions reversed) were represented by their own attorneys.
While Haller was listed as “of counsel”—which implies a limited role—her willingness to have her name listed on a pleading indicates that she lends some support for it. As for what the designation “of counsel” practically means, “The problem is that courts have no way of knowing what a lawyer intends with such a label.”
“While this does not negate her responsibility for being part of a team that made frivolous claims or for lending her name to the complaint…it is a factor that should be considered in determining the nature of any sanction to be imposed upon her…The fact that Ms. Haller permitted her name to be used, albeit with an ‘of counsel’ label, would signal to a court that she supports to some extent the document and its contents…The fact remains that frivolous claims were made and defended and Ms. Haller was part of the team making those claims. But not every lawyer involved in the litigation discussed herein is equally culpable.” The primary responsibility lies with the lawyers who had decision-making authority (which would have been primarily Powell, and to a lesser extent Kleinhendler).
Professor Salzburg then discussed the cases in GA, WI, AZ and TX. Haller argued the AZ Motion to Dismiss—having been assigned this by Kleinhendler at the last minute—and made the argument that Plaintiffs were only seeking an investigation, not a declaration that Trump had won. In Texas, Professor Salzburg agrees that the Electoral Count Act is “poorly drafted and ambiguous, but it is undeniable that the complaint falsely alleged” that there was an authorized second slate of Electors. Although there were no judicial findings of frivolous pleadings in these other states, “There is no reasonable argument that somehow frivolous claims in Michigan became non-frivolous when repeated in other states.”
Salzburg asks rhetorically, “What should lawyers do if they honestly believe that a Presidential election had been tainted by voter fraud and widespread manipulation of ballots?” Which asks to what extent should lawyers challenge information that is presented to them by an obviously self-interested client, as well as challenge whether or not they themselves might be bound within a false information “bubble.”
To his enduring credit, Salzburg carries some of the blame outside of lawyers feverishly working on a case “under intense time pressure” to the ultimate source of the whole scheme: “The President of the United States used his bully pulpit to proclaim there was widespread fraud and that so many elected officials repeated what he said created an atmosphere in which many people believed the lies…never before has a sitting President made so vigorous a claim to the public and repeated it as elected officials echoed his claim.”
So, what’s left to do in this hearing?
Byrne/Johnson plans to call James E. Trainor, III, who currently serves as a Republican member of the Federal Election Commission (FEC). Trainer was appointed to the FEC by Trump in 2017, assuming the position of FEC Chair in 2020. During his FEC confirmation hearings, Trainor refused to recuse himself from matters related to the Trump campaign. In 2025, Trainor is still on the FEC, but is stepping down to Vice Chair, as current Vice-Chair Ellen Weintraub (a Democrat who has served since 2002) steps up as Chair. Not sure what the plan is for Trainor to talk about, but pretty sure he had no connection with any of these attorneys in late 2020.
Driscoll/Haller wants to add Dr. Hans Dutt, a Ph.D. economist currently with STAT Analytics in Washington, D.C. Because Haller was responsible for one of the statistical expert affidavits, Dr. Dutt will only testify for the limited purpose of bolstering the report by Dr. William Briggs (cited in the litigation) that the sample size was sufficient. Although Dr. Dutt (unlike some of Johnson’s witnesses) does not appear to be a MAGA ideologue, it seems like his testimony is more like “battle of the experts” and not directly relevant to what Haller knew at the time the Kraken complaints were filed.
What we don’t see in the hearing is the voluminous documentation—not just exhibits, but motions challenging everything, requesting (sometimes demanding) special dispensation—most of it filed by Byrne. However, ODC has submitted a statement that purports to respond to one of Spritzer’s questions back in December. Spritzer seems to be attempting to limit the interminable presentation of evidence by being more rigorous about excluding evidence that is cumulative or irrelevant. Here is a quote from it:
“There has been an attempt to reframe the lawsuits as an innocuous request to conduct further investigation of potential fraud. Respondents assert that evidence of post-litigation concerns justifies that request. But the lawsuits did not allege that evidence of election fraud might be uncovered through further investigation. Instead, they alleged that a coordinated scheme of massive and widespread election fraud had, in fact, already been carried out to illegally elect President Biden, and—as a result—they requested to decertify the results in those states, disregard the actual vote count, and declare that Donald Trump had won… “Disciplinary Counsel has never disputed that security vulnerabilities exist. Respondent Johnson’s experts, Harry Haury, Garland Favorito, and Walter Daugherty, have all been allowed to offer tedious, extended direct testimony that—at most—emphasizes what they believe those vulnerabilities to be and how those vulnerabilities could be exploited. These witnesses did not communicate with any Respondent during the underlying litigation. These witnesses also have not credibly identified any vulnerability that was actually exploited during the 2020 general election to fraudulently cast or change ballots in sufficient numbers to affect the outcome and that was actually known to any of the Respondents. Their testimony has only shown, at best, that the opportunity to commit fraud may have been known at the time of the underlying litigation.”
Although Joseph has had almost no opportunity to present evidence, Spritzer opined that this hearing had already “broken the record” for lengthiness. Spritzer also let it slip that the Committee has already made a finding in the Arizona and Texas cases that (1) an alternate slate of Electors existed, but (2) the alternate slate had not been authorized legislatively, judicially or by the executive/Governor. They intend to allow Joseph to present evidence on this limited issue. Joseph wanted to expand the “electoral slate” argument to other states, and even Byrne objected, saying that the “disputed issue” of the validity of the Electors should be limited to Arizona.
There was some discussion about whether or not the Respondent attorneys would be testifying on their own behalf (they have previously been called by ODC). Spritzer’s practice has been to allow everyone to question a witness, whether or not the witness is officially on their “list,” so as not to unduly inconvenience the witnesses with multiple returns to testify. Spritzer likely wants to give Respondents (particularly Joseph, who hasn’t had a lot of time to present his case) a final opportunity to defend themselves.
Spritzer asked ODC if they intended to present rebuttal. Porter looked at Horrell and answered, “We’ll talk.” So, God only knows when this hearing will finally be done.
Hearing scheduled to continue Wednesday January 22 at 1:00 pm and Thursday January 23 at 9:30 am Eastern (Washington, D.C.) time.
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