(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .
DC Bar Discipline Hearing Against Kraken Attorneys Finally Concludes [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-03-15
While Donald Trump continues to shred the Constitution and swing wrecking balls at American democracy, the wheels of justice continue to grind on in the background of other jurisdictions.
This hearing started in late September of last year and finally concluded on February 19th. The Hearing Committee has scheduled submission of briefs (basically proposed findings of fact and conclusions of law) which wraps up June 30th. Closing arguments are tentatively scheduled for July 14th. No idea when we will have a decision. Then the case will proceed to the DC Court of Appeals, which will schedule yet another round of briefing and argument (without additional evidence) before the decision becomes “final.”
Although one might blame the lengthiness of this hearing on ODC’s decision to combine cases against the three attorneys, the proceedings were prolonged by the Respondents (mainly Joseph and Byrne/Johnson) adding witnesses and exhibits that were previously not disclosed. For the most part, ODC and Respondent Driscoll/Haller stuck to their lists that were submitted by the deadline. The Committee struggled to accommodate all the last minute (and constantly shifting) changes in the interest of fairness to Respondents while holding the line on enforcing the rules.
Byrne (who represents Brandon Johnson) has been the most aggressive, as well as the most whiny, making the typical Trumpian arguments about “witch hunts” and victimhood of the privileged. Even after the close of testimony, he is attempting to introduce an article entitled “Critics Suspect a Softball Ethics Verdict is Coming on Hunter Biden’s Law License.” Which is totally irrelevant to the cases and issues that the Committee is charged with deciding here.
I was able to catch some of the proceedings during February, in which Lawrence Joseph presented his case. There is some sympathy for Joseph, who is representing himself. He also seems to be lacking in trial skills; sometimes confusing rebuttal and impeachment testimony, sometimes being admonished to “not testify” while he is examining a witness. The Committee indulged Joseph for the most part. Chairman Spritzer became quite adept at rephrasing awkward questions from all of the attorneys, in order to allow witnesses to answer over objections and insure that the record is as complete as possible.
Joseph has a much more likeable personality than Byrne, but he has extreme views about the role of Congress with respect to the Electoral Count Act. One of the arguments in support of the alternate “fake” elector certificates was that they wanted to have valid certification done before the due date (December 14th) “just in case” they received a favorable ruling. Joseph has made the argument that Congress had full authority to object to the electoral certificates that were presented regardless of whether or not there were valid alternate slates. He has also argued that “cases were still pending at the Supreme Court,” and that so long as the United States was not a party (the Kraken cases were federal court actions challenging specific states), any decision would not be binding on the United States. Joseph seems to be sincere in his whack-a-doodle positions. But if these theories gain traction (cf, the Independent State Legislature theory), they could serve to justify even more lawlessness from MAGA.
Joseph’s strategy was similar to that of Byrne. They were able to locate a number of folks with cybersecurity or other expertise who had been engaged in election security challenges prior to 2020. These folks appeared to be genuinely sincere in their concerns about potential for fraud, hacks, and even innocuous technical malfunctions—which make them credible witnesses. Yet, after hours and days of testimony about hyper-technical details, there appeared to be no connection to the attorneys involved. Indeed, all of these witnesses were contacted by the Respondents in anticipation of disciplinary defense and NOT as part of any investigation prior to the filing of the Kraken cases.
Byrne alleges (in addition to arguments about bar discipline being a partisan witch hunt) that all of the evidence presented about “potential for fraud” was “discoverable” at the time the Kraken cases were filed. Contrary to the plain language in the prayer for relief (which demanded that the election results be set aside), Byrne alleges that all they were looking to do was put certification on hold until there was further “investigation.” Think that the Committee has seen through this based on some of Spritzer’s stray comments.
Joseph’s first witness was Clay Parikh. Parikh is a former Marine, who now is employed at Northrop Grummond in cybersecurity and holds a top secret security clearance. There is no dispute about Parikh’s expertise, and he describes himself as an “ethical hacker” (sometimes called “white hat”). Parikh had served on the Election Assistance Commission (EAC) Board in Georgia from 2009 to 2017, but became disillusioned because “the systems were always certified no matter what I found—which is why I couldn’t do it anymore.”
Like other witnesses called by Respondents, Parikh seems sincere because his suspicion of voting systems did not spring forth in 2020 after Trump’s loss. But what happened is that when Trump set out to challenge the 2020 election, these folks finally had an audience (along with possibly lucrative gigs as expert witnesses). Parikh came to the attention of MAGA when he testified in Kari Lake’s 2022 AZ Governor election challenge.
Parikh seems to be generally suspicious of electronic voting systems, testifying that “most states fail to meet their own requirements….your home security system is more secure than electronic voting systems….If I wanted to wear orange I could manipulate all these systems.” He accused Maricopa County (AZ) of “intentional maladministration.” After an objection from ODC, he admitted he was referring to the 2022 AZ Governor election and not the 2020 Presidential election. This was a problem throughout this tedious hearing—there was a lot of technical jargon, and it was difficult to follow which election/year/state the witness was referring to. On cross examination, Parikh admitted that he does not think machines should be allowed to count votes—all tabulation should be done by hand. “Machines have already violated the Virginia Constitution,” which also means they do not conform to HAVA.
Hagar (the non-lawyer on the Committee) asked Parikh (who had shown that these systems were “compromisable”) if they had found any evidence of actual malfeasance. To which Parikh claimed that he himself could “compromise an election and leave no evidence,” so someone would have to perform a detailed forensics analysis.
Joseph’s second witness was Ben Cotton (not the actor). ODC objected to Cotton testifying as an expert, but they were OK with him testifying as a fact witness. The dispute was not so much about Cotton testifying, but whether Joseph was going to submit a report that Cotton had proffered in Arizona. Joseph said he wanted to rebut Steven Richer’s (former Republican Maricopa County Recorder) testimony that Cotton’s report was “sloppy” and “dishonest.” Cotton has made a presentation to the Arizona Senate and submitted an affidavit in the Lake v Hobbs litigation.
Cotton served 21 years in the U.S. Army Special Operations Command (SOCOM) before founding the cybersecurity firm Cyfir in 2002. An offshoot of Cyfir was hired as a subcontractor by the now-defunct Cyber Ninjas to assist with the audit of the 2020 election in Arizona.
Cotton’s testimony recounted a (known) voter registration data breach prior to the 2020 election, where the FBI raided the home of the hacker. He also suggested that “running scripts over the net logs and applications multiple times” overwrote the logs. Like the other technical/cybersecurity witnesses, Cotton seemed to have expertise in a very narrow technical area, along with genuine frustration that his concerns were not taken seriously by Maricopa County officials.
On cross examination, Cotton admitted that he doesn’t have any evidence of a breach that affected the outcome of the election, although he believes the evidence he had should have invalidated certification. A lot of these technical types take a “zero tolerance” approach, which likely means that they would find something to challenge in just about any election anywhere.
Byrne surprisingly declined an opportunity to ask Cotton additional questions. Hagar again asked questions of Cotton confirming that all of these technical arguments were raised after the Kraken litigation was filed—suggesting that the Respondents are attempting to justify their reasoning ex post facto (i.e., concocting a defense.). Hope I am right about this.
Joseph’s third witness was Shelby Busch, Chairperson of We the People Arizona, a “citizen-driven government accountability organization.” Busch has a degree in respiratory therapy and business administration. She testified to working over 20 years in government and auditing compliance in the “medical industry.”
Busch had some connection to the Arizona audits, and also submitted a declaration to Kurt Olson, the attorney representing Kari Lake. Busch testified that her organization hired and trained 160 volunteers to perform signature verification. Her main complaint is that Maricopa County was deficient in verifying signatures. Busch was engaging and appeared credible. She testified that they were not looking to disenfranchise voters, only arguing that more should have been done to “cure” mismatched signatures. Busch admitted that there was no way to know which candidate voters with mismatched signatures had voted for. Not raised in the hearing was a comment Busch made in June 2024, threatening to lynch Steven Richer.
Joseph’s final witness was Kevin Moncla. Moncla testified that he “used to be a builder, then started a company multimedia marketing of resorts.” In addition to a somewhat sketchy background, Moncla was a resident of Texas in December 2020. Yet he joined a chorus of election deniers hounding the Georgia election officials. Moncla testified to his complaints brought before the Georgia Election Board and its failure to act. “Fulton County paid Dominion $2 million for testing that was not made public.”
Byrne attempted to ask Moncla if he knew anything about Mark Elias. Objections to relevancy and beyond the scope of direct were sustained. Byrne is obsessive about the attorneys who challenged the Kraken and other “election-denier” litigation, Hunter Biden, and just about anything or anyone who challenges the MAGA version of reality.
Is there any sense of how the Committee views the case at the conclusion of evidence? I have to commend all three members for their willingness to sit through an interminable proceeding with a lot of technical (and, in my opinion, generally irrelevant) evidence. Spritzer’s rulings have tended to favor liberal admission of evidence to develop a full record without favoring any party. Things got testy a couple of times, mainly over (mostly) Byrne’s attempts to add witnesses and documents well past the deadline, as well as Byrne’s attempts to argue with Spritzer after he had ruled on something. Frankly, I would have lost patience with Byrne’s obnoxiousness long ago.
One of the ongoing issues with evidence was how much to allow the introduction of later-discovered evidence. Byrne argued that they were not attempting to relitigate the 2020 election, only that there were “legitimate issues that might be discoverable.” To which Spritzer responded, “All the evidence was created years after the lawsuit was filed….You were asking for immediate injunctive relieve that would set aside an election. Offering documents years after the issue was decided seems to be flatly contradictory.” So, it looks like the Committee is not viewing Respondents’ position favorably here.
However, they seem to be giving Respondents more indulgence on the fake electors issue (mainly involving Joseph’s case against former Vice President Pence). ODC is arguing that there were no legitimate competing slates (making the statements false), but Spritzer recognized Respondent’s arguments that “their theory was to have competing slates in case it was needed, whether you (ODC) agree with it or not.”
Will update after the oral argument this summer.
For folks who want to follow this case from the beginning:
What the case is about, the parties and their attorneys.
Week Two (October 2024).
End of Year (2024) Update
January 2025 Update
[END]
---
[1] Url:
https://www.dailykos.com/stories/2025/3/15/2310052/-DC-Bar-Discipline-Hearing-Against-Kraken-Attorneys-Finally-Concludes?pm_campaign=front_page&pm_source=more_community&pm_medium=web
Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/
