Texas lawyer fired after Capitol riot files ambitious suit: Dissolve Congress, don't arrest him

"This is not a Sidney Powell lawsuit," Paul Davis assures court. True! Powell didn't argue for abolishing Congress

Published January 22, 2021 5:00AM (EST)

Paul Davis live-streaming during the Capitol Riot on January 6th, 2021. (Photo illustration by Salon/Instagram)
Paul Davis live-streaming during the Capitol Riot on January 6th, 2021. (Photo illustration by Salon/Instagram)

Texas attorney Paul Davis, who was fired earlier this month after posting several Instagram videos of himself on the front lines at the Jan. 6 Capitol riots, filed an impressively grandiose lawsuit in federal court on Monday, requesting that Congress disappear entirely and that nearly everyone who holds high office in the United States, along with Mark Zuckerberg, be barred from ever seeking election or voting again. He also asked the court to tell the Justice Department and FBI not to arrest him.

The complaint, filed in the Waco Division of the Western District of Texas by Davis and co-counsel Kellye SoRelle, a failed Republican candidate for state office, claims that every vote cast in the 2020 general election was illegal, and therefore that "entire 117th Congress is illegitimate." Consequently, Davis argues, every action this Congress has taken, including impeaching former President Trump and certifying President Joe Biden's victory, is "null and void."

The lawsuit was filed in the name of a few small conservative minority groups, including Latinos for Trump and Blacks for Trump, along with a number of related but unspecified individuals. The only plaintiff whose full name appears in the document is Joshua Macias, a Navy veteran and the founder of Vets for Trump, who was arrested in November after he and a friend brought a semiautomatic rifle and samurai sword from Virginia Beach to a Philadelphia ballot processing center. Macias also submitted, under penalty of perjury, a false sworn affidavit in Davis' lawsuit, upon which hinged the suit's sole claim of actual injury.

The 54-page complaint opens by stating plainly that it is "not a 2020 presidential election fraud lawsuit," and doesn't seek to change the declared winner of any elections. (Based on the subsequent arguments, that appears blatantly false.) A footnote on the first page reads: "This is not a Sidney Powell lawsuit. This is not a Rudy Giuliani lawsuit. This is not a Lin Wood lawsuit. This is not a Team Trump lawsuit. This is not a Republican lawsuit. This is not a Democrat lawsuit."

The suit then goes on to argue that procedural election changes adopted by the majority of states out of public health concerns have, unfortunately, voided every vote cast anywhere in the country.

For remedy, Davis asks the court to throw out the results of every federal election last year, shut down the legislative branch and (re)install Trump as the country's sole legitimate elected official. He adds that the court "should rest assured that the relief requested in this lawsuit will not result in the destruction of democracy." Which is reassuring.

Davis takes the additional bold step of asking the court to ban every sitting member of the House and Senate, all 50 governors and secretaries of state, the governor of Puerto Rico and Facebook CEO Mark Zuckerberg from ever holding elected office, voting, or publicly engaging in any political activity for all time.

This must be done post-haste, argues Davis, who at one point in the suit admits that he had been awake for 48 hours, because Biden was slated to be inaugurated in two days. (He filed when courts were closed for Martin Luther King Jr. Day, which burned one of those days.) On the morning of the inauguration, with no action in Waco and Trump en route to Palm Beach, Davis filed a supplemental memo begging the court to issue "some sort of restraining order" to stop Biden and all sitting members of Congress from carrying on the business of government.

To get such a restraining order, however, Davis would have to show immediate and irreparable harm to his clients. He argues that a Biden presidency would precipitate a constitutional crisis that will "have a devastating effect on the Plaintiffs' ability to plan for retirement by investing in 401(k)s, IRAs, or other such accounts."

Coming as it does on the heels of a nationwide crash course in the toxic social effects of frivolous election lawsuits, the complaint left experts appalled.

"The suit is illogical and convoluted," Barry Burden, director of the Elections Research Center at the University of Wisconsin, told Salon. "It misunderstands the Help America Vote Act altogether and the relationship between the U.S. Constitution, federal laws and state election law. It is filed far too long after the election to be actionable and in any event is requesting a preposterous remedy of removing every elected federal official from office who was elected in 2020 aside from President Trump. Remarkably, the lawsuit says nothing about how Vice President Pence should be treated."

"Somehow Mark Zuckerberg is also listed as a defendant," Burden added.

(Some experts have shared their analysis of the suit's merits, such as here and here.)

Other than Zuckerberg, named defendants include Rep. Pete Sessions, R-Texas; House Speaker Nancy Pelosi; then-Senate Majority Leader Mitch McConnell; Rep. Alexandria Ocasio-Cortez, D-N.Y.; then-Senate Minority Leader Chuck Schumer; and Georgia secretary of state Brad Raffensperger. That list then extends to "all current so-called members of the 117th Congress," every governor of the 50 states and Puerto Rico, and every secretary of state. The Facebook CEO is sued in his capacity as founder of the Chan-Zuckerberg Initiative, and at one point Davis accuses him of criminal fraud, without elaboration.

The suit does not appear to have considered that the vast majority of senators, along with a large proportion of the governors and secretaries of state, were not elected in 2020. Its legal argument, if that's the correct term, appears to rest in large part on two "expert" reports: One produced by Dennis Nathan Cain, aka the Clinton Foundation whistleblower; and one by a man whose LinkedIn page says that he had 40% of his cerebellum removed.

"One thing that Americans learned during the post-election litigation is how little patience courts have for absurd legal arguments," Ciara Torres-Spelliscy, fellow at the Brennan Center for Justice at the NYU School of Law, told Salon. "This legal effort to declare Congress illegitimate will be laughed out of court and could lead to sanctions for the lawyer bringing such a claim."

"One might try to chuckle at this lawsuit but it is an abuse of the court and the judicial process," Rick Hasen, nationally renowned election law expert at the University of California Irvine School of Law, told Salon. "The lawyers should face sanctions and punishment for filing such a frivolous and ridiculous lawsuit."

Davis has genuine legal credentials, surprisingly enough. He graduated from the University of Texas School of Law, ranked 14th nationwide at the time. He gained civil litigation experience at Andrews Kurth, a large Houston-based firm that has since grown into Hunton Andrews Kurth. He later took a position as associate general counsel at Goosehead Insurance, a job he held until the morning of Jan. 7, when he was fired after an internal company investigation into his involvement in the assault on the U.S. Capitol, which Davis documented on his public Instagram account and was first widely shared by this Salon reporter via his personal Twitter account.

"We're all trying to get into the Capitol to stop this," Davis, standing in front of a line of riot police, says in one clip, referring to Congress ratifying the electoral vote. "And this is what's happening. They're tear-gassing us, and this is not acceptable — not acceptable. People are not going to stand for this."

In the filing, Davis brings up his current legal situation unprompted, asking the court to order the Justice Department, the FBI and all other federal agencies not to arrest him for his actions at the Capitol, unless they can show that he committed "some overt and intentional act of violence that directly resulting in substantial injury to the person of another." He argues that his arrest will get in the way of pursuing this important case, but does not address the fact that many actionable crimes do not involve physical violence.

Davis maintains he was peacefully protesting at the Capitol and did not go anywhere he didn't have the legal right to be. In fact, he drew attention to this in his own signature block on the lawsuit:

Davis also posted a similar denial to his since-deactivated Instagram account, claiming that he was not advocating violence when he said he was "trying to get into the capitol," and that the video had been taken out of context. In another post he says that his entire Instagram story from that day will show that had been "peacefully demonstrating" and praying over the police:

For those of you claiming I was trying to "storm the Capitol," it's obvious from my entire story that I was peacefully demonstrating. They gassed the entire crowd that was standing there with me. I was not trying to break in. Was just talking to the police officers and praying over them.

A series of clips from that Instagram story, obtained by Salon, shows Davis praying in front of multiple lines of riot officers, after which, in another clip from a separate location, he gets knocked around as the crowd and police clash, saying that they "tear-gassed us and pushed us down the stairs," and adding that "it got a little rowdy."

Some charges already handed down from that day suggest that Davis' claim to innocence may not be true, such as these, part of the government's case against Proud Boy member Joe Biggs, which alleges that he:

. . . did knowingly enter or remain in a restricted building or grounds, i.e., the U.S. Capitol, without lawful authority, or did knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engage in disorderly or disruptive conduct;

did willfully and knowingly engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of any deliberations of either House of Congress.

Incidentally, the lone named plaintiff in the lawsuit, Vets for Trump co-founder Joshua Macias, was also active at the Capitol on Jan. 6. As a result, he faces a court motion to have his bail revoked, which Macias initially incurred from his arrest in November after he and a friend drove from Virginia Beach to a Philadelphia ballot counting center with two handguns, an AR-15, ammunition and the aforementioned samurai sword.

Macias, like Davis, claims that he did not enter the Capitol, but federal prosecutors say in their court motion that video from the day shows him giving "a speech to a crowd inciting a riot."

"During that speech, the rioters overran the Capitol Police Officers stationed at the door of the Capitol and invaded the building in a manner not seen since the War of 1812," the motion says.

"MIKE PENCE IS A BENEDICT ARNOLD," Macias told the mob, according to the filing, adding that Pence "backstabbed the veterans, backstabbed these patriots. That's why we're here. President Trump, you have the ability to pass, you have the strength, sir. The Insurrection Act is now! You have the power, sir, and we support you 110%."

The document says that Macias then "participated in the insurrection at the US Capitol," adding that video shows him "within the security perimeter on the Capitol Grounds in an area specifically marked 'No Demonstration Permitted.'"

In a sworn affidavit attached to Davis' lawsuit, Macias says that he voted in the 2020 elections for House and Senate in North Carolina:

My name is Joshua Macias, I am competent to make this Declaration as follows. I declare and verify under penalty of perjury that I voted in the 2020 election for the U.S. House of Representatives and the U.S. Senate in the state of North Carolina.

But Macias, who says that he lives in Virginia and North Carolina, has never been registered to vote in North Carolina. It is unclear how such an error was sustained, considering that Davis uses Macias to argue that every vote cast this year in North Carolina (and all 49 other states) was illegal.

Macias' right to vote, Davis writes in a motion for a restraining order, was clearly harmed in one of two ways. Davis says that he cannot specify which, however, because he was writing the motion at nearly 2 a.m., while Macias was asleep and unavailable for consultation.

Undersigned counsel would clarify whether Mr. Macias voted in person, but the truth of the matter is that its 1:54 AM and Mr. Macias is asleep while counsel has not slept in two nights drafting this lawsuit. But this fact is immaterial because either way, Mr. Macias is injured.

Salon pointed out the false claim about North Carolina to Davis as well as to a representative for Macias, who characterized it as a "clerical error" but repeatedly refused to answer Salon's questions about who made the error or its substance. Davis eventually sent Salon a draft of a second declaration in which Macias says that the confusion about where he voted stemmed from a discussion with an unidentified "member of the legal team" whom Macias had authorized to sign the affidavit electronically on his behalf.

Davis appears to be the sole author of the complaint, though his co-counsel, SoRelle, happens to be a co-signer with Macias on a separate but strikingly similar "invincible" legal argument posed ahead of the Capitol riot by conspiracy theorist and Roger Stone confidant Jerome Corsi. But Davis would not disclose the "team member's" name to Salon, citing attorney-client privilege. He declined to say whether he would retract his argument about North Carolina's "illegal" voting laws and amend it to Virginia, but indicated that the second declaration would appear on the court docket on Wednesday night. As of this writing it has not.

"This is impressive on many levels," Michael Dunford, a lawyer who tracks frivolous litigation and has analyzed the case, told Salon. "If I were a lawyer concerned about seditious conspiracy charges heading my way as a result of my actions on Jan. 6, I'm not sure that's someone I'd want to be associating with," Dunford added, referring to Macias and his prior arrest.

"Second, credit where due: It's good that the lawyers are correcting the record now that they're aware they've made a bad mistake," he continued. "That said, this is a hell of an embarrassing mistake. The Federal Rules of Civil Procedure require lawyers to make an 'inquiry reasonable to the circumstances' before asserting claims in court. I'm pretty sure that in any voting rights case, such an inquiry would likely include knowing where your own client voted. You'd at least hope they'd get the state right."

"None of this is likely to matter much in the long haul," Dunford concluded. "The case is frivolous no matter where Macias voted. All this second statement really tells us is that these lawyers might actually be so fear-crazed that they somehow think they're presenting a real case to the court."

Hasen, the election law expert from UC Irvine, concurred on that point. "I've already said that this complaint should open up the lawyer to sanctions," he said, "and the confusion (at best) over the truth of the first affidavit only makes things worse."

Beyond Macias, other parties to the suit have also had encounters with the law. The chief of staff of Latinos for Trump, for instance, is Proud Boy chairman Enrique Tarrio, who was arrested two days before the riot on weapons and vandalism charges. Tarrio also has not paid $1.2 million he owes Abbott Labs in restitution for stolen diabetes strips, and until he does so cannot register to vote. The founder of Blacks for Trump, Maurice Woodside aka Michael the Black Man, has trafficked in anti-Semitic and anti-gay rhetoric and formerly belonged to a violent religious sect often described as a cult.

Neither group responded to Salon's request for comment.

Asked for comment on the lawsuit and his next moves after Biden's inauguration on Wednesday, Davis told Salon in an email, "Send me a physical address, and we will mail you a written statement." Salon declined, citing the deadlines inherent in internet news publication, and suggested a phone call. Davis demurred and bid Salon a good day.

Two days before he filed the suit, Davis asserted his confidence in a lengthy post on his since-deactivated Facebook page. He concluded:

Now let the hateful comments begin, if you dare. But, be forewarned that God will bring severe judgment on you sevenfold for every evil word you speak against me and have already spoken. Praise be to the Lord our God, and long live His chosen instrument for good in the world: The United States of America. Amen. Hallelujah. 

Read the full complaint here.

Update: In a series of midnight filings on Friday, Davis retracted Macias' claim to have voted in North Carolina and adapted it to Virginia instead. He also adapted his motion for emergency restraining order to Biden's inauguration on Wednesday by proposing a restructuring of the United States government in the fashion of Gondor, a mythical realm from The Lord of The Rings.

By Roger Sollenberger

Roger Sollenberger was a staff writer at Salon (2020-21). Follow him on Twitter @SollenbergerRC.

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