Untitled, Watercolor, 20" x 28.5", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
This post includes input from several lawyers including George M. Haley.
With the unprecedented insurrection and seditious attack on the United States Capitol to interfere with the peaceful transfer of power, the United States has experienced the culmination of the conduct of the likes of Utah’s Attorney General Sean Reyes. Five people are dead. Nearly 140 members of law enforcement sustained injuries, some serious and debilitating. Twenty-five thousand troops were dispatched to Washington D.C. in lead-up to the Inauguration based on continuing and growing threats of domestic terror fomented by those who told and repeated the Big Lie – Trump and his disciples, many of whom, having taken oaths, held (and hold) positions of responsibility in government and law. As of this posting, a barrier remains around the Capitol building, guarded by thousands of troops. Based on credible threats of additional violence, Congress adjourned for its March 4, 2021 session.
It wasn’t long ago when a president and his disciples, a large group of thugs really, people both in and out of government, mounted a sustained attack on democracy in the United States, using disinformation to undermine a free and fair election. After Special Counsel Muller’s investigation, a grand jury indicted many of them for knowingly and intentionally conspiring with each other “to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016,” using “dishonest means in order to enable them to interfere with the U.S. political and electoral processes . . . .”
Violation of the conspiracy statute carries a prison term of up to five years. 18 U.S.C. § 371.
The homegrown attack on the 2020 US presidential election was no less insidious and is even more deserving of a full investigation and criminal prosecution. The misconduct appears equally to satisfy the elements of the federal conspiracy statute.
Mr. Reyes behaved in a fashion that abuses the rights and responsibilities of an attorney who holds a license to practice law. The duties and dignity of the office Mr. Reyes holds should not be so abused. Mr. Reyes took the attorney’s oath when he was sworn as a lawyer in the State of Utah and a similar oath as Utah Attorney General, swearing to support, obey and defend the Constitution of the United States and the Constitution of the State of Utah “with fidelity.”
After scores of failed lawsuits raising the same specious allegations and issues in state and federal courts, and without the knowledge or informed consent of the client representative, the Governor of the State of Utah, Utah Attorney General Sean Reyes signed an utterly meritless brief as Amicus Curiae claiming the State of Utah’s full support of the frivolous Bill of Complaint and Motion to File Bill of Complaint filed in the United States Supreme Court by the Attorney General for the State of Texas, a suit that sought to overturn the 2020 Presidential Election (Complaint). On its face the State of Utah lacked standing to do so. Indeed, the United States Supreme Court summarily rejected all substantive relief sought in the Complaint, holding that “[t]he State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution.”
The Complaint to which Mr. Reyes affixed his name and reputation advanced the Big Lie, made material misrepresentations of fact, withheld information from the High Court, sought to mislead the High Court and otherwise lacked a factual or legal basis. Representing an act of sedition, the Complaint was a blatant attempt to subvert constitutional and democratic principles on which democracy has survived in the United States since its founding; sow division among the citizens of the United States; undermine the credibility and reliability of United States institutions; create doubt about the outcome of the 2020 Presidential Election; and foment the rising undercurrent of civil unrest, violence and domestic terror by a growing faction of voters whose preferred candidate lost by significant margins.
Utah law requires the Attorney General to “perform all duties in a manner consistent with the attorney-client relationship under Section 67-5-17.” Under Utah law, s/he must take direction from, advise and inform, and abide by the decisions of the chief executive, the Governor of the State of Utah, who speaks on behalf of the State of Utah and its citizens.
Acting in his personal interest without the advance knowledge of the Governor, Mr. Reyes undermined the will of his client by making among the most consequential decisions a state could make in the history of the republic. Particularly egregious was his failure even to notify the Governor before joining an action meant to overturn the will of the people in the 2020 Presidential Election. On December 9, 2020 Governor Gary Herbert and Governor-Elect Spencer Cox issued a joint statement condemning Mr. Reyes’s unilateral decision to join the frivolous and now-failed Texas lawsuit. They said:
"Just as we would not want other states challenging Utah’s election results, we do not think we should intervene in other states’ elections. Candidates who wish to challenge election results have access to the courts without our involvement. This is an unwise use of taxpayers’ money."
Mr. Reyes did not do this on his own time or in his personal capacity. As a result, Mr. Reyes also had a conflict of interest. He was an elector sworn to vote for Trump. In his capacity as an elector appointed by the Republican Party, his interest was personal and political, distinct from his capacity as the elected lawyer for the State of Utah. His interest as an elector was to elect Trump. With personal/political interest in the case, he filed papers purporting to represent the separate and distinct interests of the State of Utah, the intended effect of which was to disqualify electors in other states who voted for the opposing candidate.
Mr. Reyes’s fealty to Trump and personal ambition were, in part, reasons why he endorsed the friend of the court brief in the United States Supreme Court on behalf of the State of Utah without disclosing to the Governor and seeking his informed consent. Personal ambition to advance his status with Trump with a facially frivolous filing, fully meant to attack and undermine the 2020 Presidential Election, was adverse to the interests of the State of Utah and its Governor.
Lawyers who betray the very democratic institutions they are charged with protecting and improving are definitionally unfit for the legal profession. Nearly 160 million Americans exercised their right to vote in the November 2020 election. Dozens of courts rejected unfounded claims of widespread voter fraud, and the United States Supreme Court summarily rejected the patently baseless and frivolous lawsuit in which Mr. Reyes unilaterally “joined” the State of Utah. Mr. Reyes has shown that he has no respect for the American public and our democracy by working to disenfranchise tens of millions of voters.
Such egregious breaches of integrity matter. The very existence of the legal profession is symbiotic with the preservation and furtherance of the American republic. Mr. Reyes’s actions send an unmistakable message to the rest of the legal community, to aspiring lawyers, and to the public: that lawyers – including the chief law enforcement lawyer in the State of Utah – cannot be trusted with the task of protecting, let alone improving, our sacred democracy, and that lawyers can denigrate democratic institutions with impunity.⁂
Mr. Reyes’s joinder as an amici in the Texas Complaint was an affront to the Constitutions he swore to uphold, an affront to his putative client the State of Utah, an affront to the Governor of the State of Utah and Governor-Elect, and an affront to the rule of law, demonstrating failures of his competence, honesty, trustworthiness and fitness as a lawyer.
Mr. Reyes should be thoroughly investigated for potential violation of 18 U.S.C. § 371, as part of a larger conspiracy to defraud the United States. Reporting shows Mr. Reyes and other state attorneys general met with Trump one day after he announced Utah’s formal endorsement of the Texas Complaint. Reports – and recordings – establish that Mr. Trump pressured several officials in certain battleground states to take steps to undermine the election results in their states. The FBI should conduct a thorough investigation of Mr. Reyes’s knowledge of and involvement in the Republican Attorney General Association’s sponsorship of the January 6, 2021 attack on the United States Capitol. Reliable media reports confirm that the Republican Attorney General Association (RAGA), through its fundraising arm – ironically named Rule of Law Defense Fund – was a sponsoring organization of the January 6, 2021 attack on the United States Capitol. Mr. Reyes is – or was – a member of RAGA’s Executive Committee. Those in charge, clutching their pearls, claimed to be shocked by what happened and the ensuing violence. Anyone paying attention could foresee that violence was a planned feature of the January 6 event.
A 9-0 decision by this conservative Supreme Court issued two days after Mr. Reyes announced Utah’s formal endorsement of the Complaint is proof that the filing was frivolous. By engaging with other attorneys general and Trump in this endeavor, and doing so without the informed consent of his client, Mr. Reyes has inflicted and is inflicting serious damage to the foundational principle of democracy — the mechanism by which individual citizens participate in self-government and together decide who our leaders will be. Not since 1861 when Confederate General P.G.T Beauregard ordered the cannons to open fire on Ft. Sumter has there been such a direct assault on our democracy. The domestic efforts to overturn the election are more insidious than the interference by foreign actors, and are already threatening to do more damage. Why? The country cannot unite against a common enemy but instead divides against itself. Moreover, those of Trump’s followers who were, and continue to be, willing, if not eager, to commit acts of domestic terror when they do not get their way did just that based on the false and seditious claims of those who say and repeat the Big Lie – that the election was rigged and must be overturned.
For those who are interested in reading the State of Pennsylvania’s response to the frivolous filings, I include the following:
"Since Election Day, State and Federal courts throughout the country have been flooded with frivolous lawsuits aimed at disenfranchising large swaths of voters and undermining the legitimacy of the election. The State of [Utah] has now added its voice to the cacophony of bogus claims. [Utah] seeks to invalidate elections in four states for yielding results with which it disagrees. Its request for this Court to exercise its original jurisdiction and then anoint [Utah]’s preferred candidate for President is legally indefensible and is an afront to principles of constitutional democracy.
"What [Utah] is doing in this proceeding is to ask this Court to reconsider a mass of baseless claims about problems with the election that have already been considered, and rejected, by this Court and other courts. It attempts to exploit this Court’s sparingly used original jurisdiction to relitigate those matters. But [Utah] obviously lacks standing to bring such claims, which, in any event, are barred by laches, and are moot, meritless, and dangerous. [Utah] has not suffered harm simply because it dislikes the result of the election, and nothing in the text, history, or structure of the Constitution supports [Utah]’s view that it can dictate the manner in which four other states run their elections. Nor is that view grounded in any precedent from this Court. [Utah] does not seek to have the Court interpret the Constitution, so much as disregard it. . . .
"[Utah] offers statements about Pennsylvania law and Pennsylvania’s election administration. Befitting of [Utah]’s distance and unfamiliarity with either, those statements are littered with patently false allegations and conclusions.
"First, [Utah] asserts that the Secretary 'abrogated' the mandatory signature verification requirement for absentee or mail-in ballots. Bill of Complaint at 14-15. This is untrue. See In re Nov. 3, 2020 Election, 240 A.3d 591, 610 (Pa. 2020) (Election Code does not authorize county election boards to reject mail-in ballots based on an analysis of a voter’s signature. '[A]t no time did the Code provide for challenges to ballot signatures.'). Far from usurping any legislative authority, the Pennsylvania Supreme Court refused 'to rewrite a statute in order to supply terms which [we]re not present therein. Id. at 14. A federal judge reached the same result. See In Donald Trump for President, Inc. v. Boockvar, 2020 WL 5997680, at 58 (W.D. Pa. Oct. 10, 2020) ('[T]he Election Code does not impose a signature-comparison requirement for mail-in and absentee ballots.').
"Second, [Utah] alleges that certain county boards of elections did not grant poll-watchers access to the opening, counting, and recording of absentee and mail-in ballots. Bill of Complaint at 16. This is also untrue. See In re Canvassing Observation, _ A.3d _, 2020 WL 6737895, 8-9 (Pa. 2020) (holding that state law requires candidate representatives to be in the room but the viewing distance is committed to the county boards, which, in that case, was reasonable); Trump for President, Inc. v. Sec’y of Pennsylvania, 2020 WL 7012522, at *8 (3d Cir. Nov. 27, 2020) (affirming dismissal of poll-watcher claim, in part, because the Trump Campaign 'has already raised and lost most of these state-law issues, and it cannot relitigate them here.').
"Third, [Utah] asserts that certain counties 'adopted  differential standards favoring voters in Philadelphia and Allegheny Counties with the intent to favor former Vice President Biden.' Bill of Complaint at 17. In support of this false assertion, [Utah] cites to the complaint in Trump v. Boockvar, 4:20-cv-02078 (M.D. Pa. Nov. 18, 2020). What [Utah] neglects to mention is that this complaint was dismissed, see Trump v. Boockvar, 2020 WL 6821992 (M.D. Pa. Nov. 21, 2020), and that dismissal was affirmed by the Third Circuit because those charges were backed by neither specific allegations nor evidence, Trump for President, Inc. v. Sec’y of Pennsylvania, 2020 WL 7012522, at *8 (3d Cir. Nov. 27, 2020). [Utah]’s suggestion of a wide-ranging conspiracy is a fantasy.
"Fourth, [Utah] alleges that certain counties illegally permitted voters to cure minor defects in mail-in ballots. But under Pennsylvania law minor defects—such as a failure to handwrite the voter’s name and/or address on the declaration—did not, in fact, void the ballot. See In re Canvass of Absentee & Mail-in Ballots of November 3, 2020 Gen. Election, 29 WAP 2020, _ A.3d_, 2020 WL 6866415, 15 (Pa. Nov. 23, 2020) ('We have conducted that analysis here and we hold that a signed but undated declaration is sufficient and does not implicate any weighty interest. Hence, the lack of a handwritten date cannot result in vote disqualification.'); *Trump v. Boockvar, 2020 WL 6821992, 12 (M.D. Pa. 2020) ('it is perfectly rational for a state to provide counties discretion to notify voters that they may cure procedurally defective mail-in ballots), *aff’d 2020 WL 7012522.
"Fifth", there was no state law violation when the Pennsylvania Supreme Court temporarily modified the deadline for the receipt of mail-in and absentee ballots, because state constitutional law required it. *See Pa. Democratic Party v. Boockvar, 238 A.3d 345, 369-72 (Pa. 2020). Under this Court’s jurisprudence, nothing in the Elections Clause of Article I 'instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.' Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 817- 18 (2015) (AIRC). The same is true for the Elector Clause in Article II.
"Sixth, [Utah] avers that Pennsylvania 'broke its promise to the Court to segregate ballots and comingled * * * illegal late ballots.' This is also utterly false. The Secretary had already instructed that all ballots received during the three-day period be segregated and counted separately. Indeed, Justice Alito adopted these instructions by the Secretary as an order of the Court. And the county boards of elections complied with that order. The qualified ballots received during the three-day extension were segregated and counted separately. That number of ballots is too small to change the outcome of any federal election in Pennsylvania.
"Finally, [Utah] cites to two fundamentally faulty reports. The report authored by certain Pennsylvania House Representatives (the 'Ryan Report') arrives at incorrect numbers because it mischaracterizes the total number of absentee and mail-in ballots as only mail-in ballots. Of the 3.1 million ballots sent out, 2.7 million were mail-in ballots and 400,000 were absentee ballots. [Footnote omitted.] This fundamental error contaminates their calculations."
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers
⁂ Some language in this paragraph and the preceding two paragrapohs was borrowed from a petion against Senators Hawley and Cruz. The link to that petition states it is no longer accepting responses. But see https://www.jurist.org/news/2021/01/thousands-of-lawyers-and-law-students-petition-to-disbar-us-senators-josh-hawley-and-ted-cruz/