The DNC lawsuit

On Friday the Democratic National Committee filed a lawsuit against the Trump campaign, Donald Trump Jr., Paul Manafort, Jared Kushner, the Russian Government, Julian Assange, and a host of other defendants for allegedly conspiring to disseminate the DNC’s stolen data during the 2016 election. The complaint is available here.

The DNC lawsuit has received sharp criticism from political analysts, Democratic operatives, and legal scholars. For example, CNN political commentator Gloria Borger called the lawsuit a political “stunt.” Former Obama campaign adviser David Axelrod complained that the lawsuit was “spectacularly ill-timed” and declared that “[e]veryone should chill out and let Mueller do his job.” Most important of all, Prof. Stephen Carter argued in an excellent Bloomberg column that the DNC lawsuit will likely be dismissed at the pleading stage.

Although I agree with Professor Carter that the complaint as it currently stands faces a serious risk of dismissal on Rule 12(b)(6) grounds, I nevertheless think the DNC lawsuit has more merit than is immediately obvious. If it survives the inevitable dismissal motions to come, the DNC’s civil action could serve as a critical insurance policy if President Trump fires the Special Counsel and pardons all current and potential defendants in the Russia probe.

The Pleading Problem 

From a pleading perspective, there are two potential problems with the DNC lawsuit. 

The first is the district court judge may rule that the complaint fails to allege sufficient facts to make a conspiracy between Moscow and the Trump campaign plausible under Rule 8 of the Federal Rules of Civil Procedure. To a large degree, the DNC complaint relies on the same type of circumstantial evidence of conspiracy that the Supreme Court in the 2009 case of Ashcroft v. Iqbal (and the 2007 case of Bell Atlantic v Twombly) held is insufficient to state a claim upon which relief can be granted. The DNC could thus find itself caught in a Catch 22, just like the plaintiffs in the Iqbal and Twombly cases. The only way to ascertain sufficient facts of a conspiracy between the Trump campaign and the Russians is to get to the discovery stage. But you can’t get to discovery if you don’t survive the defendants’ motions to dismiss. 

The second potential flaw in the complaint is the fact that the Foreign Sovereign Immunities Act immunizes the Russian government defendants, unless the DNC can show that the tort (i.e. the hack) happened on U.S. soil. On the Lawfare blog, Prof. Ingrid Wuerth provides a fascinating analysis of the FSIA that explores the challenges the DNC lawsuit faces. As she explains, for the tort exception to FSIA to apply, “The ‘entire tort’ doctrine generally provides that both the injury and the tortious conduct causing the injury must occur in the United States.” Thus, although the DNC clearly suffered injury in the U.S., the hackers were presumably located on Russian soil, a fact that could prove fatal to the DNC’s efforts to get around FSIA. 

How the DNC Could Survive the Defendants’ Dismissal Motions

But despite the criticism it has received, and the formidable obstacles it faces at the pleading stage, the DNC lawsuit is far from frivolous. In fact, I think there is at least a chance it will survive the defendants’ forthcoming dismissal motions.

The most compelling defense of the DNC lawsuit is the fact that a Special Counsel for the Justice Department is currently conducting an ongoing criminal probe into potential collusion between Russia and the Trump campaign in the 2016 election. If there is enough evidence to justify a criminal investigation, the judge in the civil action may well conclude that the facts alleged in the DNC complaint are sufficient to permit the case to go forward. After all, civil cases operate under a much lower evidentiary burden (the “preponderance of the evidence” standard) than the “beyond a reasonable doubt” standard in criminal cases.   

Moreover, the public record as it currently stands at least arguably makes the DNC lawsuit “plausible” for pleading standard purposes. For example, in the notorious June 2016 meeting at Trump Tower, the president’s son, son-in-law, and campaign manager met with a Kremlin-connected lawyer and a Russian intelligence officer to discuss opposition research the Russians had on Hillary Clinton.

The president himself also provided evidence useful to the DNC lawsuit. In a July 2016 speech, Donald Trump publicly called on Russia to hack Clinton’s emails:

“Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens.”

Although Trump Press Secretary Sean Spicer later claimed that Trump was “joking,” the district court judge could conclude that there is enough in the public record to permit the case against the Trump campaign defendants to go forward to the discovery stage. 

Moreover, as both Prof. Wuerth and Prof. Carter point out, the full extent to which FSIA immunizes foreign government defendants is far from clear. Prof. Wuerth notes that in the 2015 case of Sachs v. OBB Personenverkehr (which dealt with the commercial activity exception to FSIA), the U.S. Supreme Court held that courts should look to the “gravamen” of the conduct in determining whether the activity occurred in the U.S. She explains that “[i]f a similar test were applied in the tort context, the gravamen of the DNC suit would likely be the United States.” It is also not clear whether the individual Russian defendants will be protected by FSIA if the Russian government does not invoke the statute as a defense. 

It is thus at least possible that the DNC lawsuit could go forward against the various Russian defendants even if the American defendants are dismissed.  

An Insurance Policy if Trump Fires Mueller

If the DNC civil action ultimately survives the motions to dismiss, it will serve as a vital insurance policy in the event that the Special Counsel’s investigation meets an untimely demise. Imagine the following scenario: a few weeks from now Special Counsel Robert Mueller brings criminal charges against senior Trump campaign officials alleging that they conspired with the Russian government to hack the DNC computer system and disseminate the data to help the Trump campaign (as the DNC complaint alleges). In that scenario, Rule 8 would certainly no longer be a problem (particularly assuming the complaint is amended to add the new facts) and the DNC lawsuit would proceed to the discovery stage.

Then imagine that President Trump responds to the indictments by firing Mueller and Deputy Attorney General Rod Rosenstein. To put it mildly, a Trump version of the Saturday Night Massacre is well within the realm of possibilities. Only a week ago Attorney General Jeff Sessions indicated that he may resign his office in protest if Trump fires Deputy Attorney General Rod Rosenstein. The attorney general would not have made such a threat if the president wasn’t seriously considering firing Rosenstein and Mueller. And just two days ago on NBC’s Meet the Press program, a senior White House official would not rule out firing Mueller.

Accordingly, it makes sense for the DNC—which was undeniably injured by the Russian hack—to keep the door open to a civil action for as long as possible. If Mueller turns up evidence of a conspiracy between the Trump campaign and Moscow, and Trump responds by terminating the criminal investigation (and pardoning the defendants), the DNC civil lawsuit will be the last hope for getting to the bottom of what happened in the 2016 election.

The Advantages of a Civil Action

Assuming it survives the pleading stage, the DNC’s civil action will have one crucial advantage over Mueller’s investigation: the president’s power to pardon only applies to federal criminal cases, not to civil lawsuits. In addition, anyone that Trump pardons in the Special Counsel investigation will be subject to civil subpoenas and required to testify under oath in the DNC lawsuit. This will be particularly important if the president issues mass pardons to everyone involved in the Russia scandal. 

The civil discovery process also has an advantage in terms of its scope. It could bring to light matters that don’t necessarily reach the level of criminal acts, but nonetheless have relevance to the DNC’s civil claims as well as to future efforts to clarify and strengthen the federal ban on foreign contributions.

The biggest drawback of the DNC lawsuit is the fact that it looks like a transparently partisan act. But it seems to me that most Americans who still have an open mind about the Russia investigation are knowledgeable enough to distinguish between Mueller’s criminal probe and the DNC’s civil lawsuit.

It is also a noteworthy fact that the Democrats brought a similar civil action during Watergate, and then as now the lawsuit was condemned as a political stunt. But the Watergate civil suit ultimately ended in victory for the Democrats, as they emerged with a $750,000 settlement agreement with the Nixon campaign. Importantly, the Watergate civil suit did not impede the Congressional and Special Prosecution Force’s investigations into the Nixon Administration. History thus provides at least a bit of encouragement to the DNC lawsuit. 

The Statute of Limitations Issue

In any case, important time considerations demanded that the DNC act when it did. Over the weekend Tom Perez, the DNC chair, identified the statute of limitations as his primary reason for filing now. 

If the DNC had let the statute of limitations run on its civil claims, and then a few weeks or months from now Mueller produced evidence of a conspiracy, only to be fired shortly thereafter by the president, many of the same people who criticized Perez for filing the lawsuit would instead be criticizing him for not filing it. 

History will of course be the ultimate judge. But for the time being, it seems to me that Tom Perez and the DNC took the safest course available by keeping their legal options open. 

Comments

[Anthony Gaughan]

I just want to point out that with regard to the Sachs v. OBB Personenverkehr case, I initially wrote that the Supreme Court held that "courts should look to the 'gravamen' of the tortious conduct in determining whether the tort occurred in the U.S." But that is not exactly what the Court held. Although the underlying facts of the Sachs case involved a tort, the FSIA issue involved the commercial activity exception. So I've rewritten the sentence so it reads: "courts should look to the 'gravamen' of the conduct in determining whether the activity occurred in the U.S." I hope that makes the point clearer.

[Jared]

It is important to remember that Mueller, Rosenstein and Sessions - for all of Trump's tweeting about them -- are Republicans and two of them are Trump appointees. Comey is also a Republican. There are no Democrats making the big decisions in this process. While right now these public servants seem to be doing their jobs and following where the evidence leads them -- will they ultimately give in to pressure from a Republican President and Congress? There is no one representing the Democrats in the criminal process; no one to ask questions on behalf of the Democrats. This is the second time the DNC has been "broken into" during a Presidential campaign. The DNC needs to make sure something is done about it, and not assume others will do it for them.

[Deep State Special Legal Counsel]

Filing suit. It worked for President Cheney and Vice President Bush in 2000.

[Bernie Burk]

Civil Discovery may provide all that the post promises. The problem is that it may provide a lot more. Why isn't anyone talking about the fact that civil defendants get discovery too, and that a determined adversary can wreck a lot of havoc "exploring the basis for" the plaintiffs' theories of liability and damages, not to mention the defendants' own affirmative defenses and possible counterclaims, compulsory or permissive, that would not have been brought but for the initial salvo? Waiver, estoppel, or unclean hands, anyone? How about relying on the conspiracy theory popular in some quarters on the right that the FBI was and is in bed with DNC interests as a means of taking discovery of Mueller's team while their investigation is ongoing?

The Trumpists often try to ignore the principle, but the fact is that sauce for the goose is still sauce for the gander. And most federal judges, regardless of their political proclivities, tend to see it that way, at least in my experience. Permissive application of Twiqbal and a free hand in discovery, if it is forthcoming, will be forthcoming both ways.

If this were about limitations concerns, the DNC would have asked for a tolling agreement, and when it was refused, could have filed the action coupled with a motion to stay it pending the Mueller investigation.

I fear someone at the DNC is being too clever by half here.

--Bernie

[Deep State Special Legal Counsel]

Yes.^^^^^Subpoena Duces Tecum---PEE PEE TAPE!!! (Legal Spin on Colbert) Putting my JD to good use here.

[Jared]

To Bernie Burk's point -- of course defendants get discovery too. But every Republican conspiracy theory does not seem to be a counterclaim against the DNC. During the campaign, the FBI ended up helping the Republicans - the Comey letter arguably song the election to Trump -- so I do not see why the DNC should fear discovery involving the FBI.

The fact of the matter is that the Republican Congress has had subpoena power and a free hand in discovery to explore their various conspiracy theories for quite some time now. They have come up with largely nothing, although Hannity et al try to spin it otherwise. The DNC has nothing to fear here.

[anon]

As usual, common sense is not the hallmark of radical far- leftist thinking.

"For example, in the notorious June 2016 meeting at Trump Tower, the president’s son, son-in-law, and campaign manager met with a Kremlin-connected lawyer and a Russian intelligence officer to discuss opposition research the Russians had on Hillary Clinton."

If the "Russians" were in cahoots with the T campaign, why would this meeting have been necessary? Have any of you read what the attorney who led the meeting has stated?

IF there was a "conspiracy" with "the Russians" why would the candidate plead on national television to commit an overt act in furtherance of it (if he wasn't joking, which he obviously was)? Really, how oblivious must one be to suppose that a candidate is in an illegal, clandestine conspiracy with "the Russians" and then announces his instructions to the malefactors on national television? Please.

You state: "The attorney general would not have made such a threat if the president wasn’t seriously considering firing Rosenstein and Mueller." You don't know that. In fact, that rank speculation, as is most of the rest of the post above, is just the common, everyday "let's suppose and then tear our hair out about our suppositions" one hears every night on MSNBC. You may not watch it, but you mimic it perfectly.

Burk is right, there is so much to discover in this suit from the DNC. Just like the hysteria about T not being willing to "accept the results of the election" when H was thought to be a sure winner, the far left just doesn't seem to know what it is wishing for: most of the time it gets hoisted on its own petard.

[anon]

There is a bigger issue here as well.

THe partisan nature of the topic selection, argument and judgments here in the FL reflects a rank partisan point of view.

This sort of partisanship, although perhaps defensible for individuals (no matter how destructive it is), is not appropriate, in my view, for scholars.

Have wannabe pundits hidden in academia forever? Yes. Do they belong? No, not really. Mostly, such persons are attention seeking grandstanders, trying to garner cheap applause from the biased crowd.

If you want to be Rachel Maddow, go out into the market and see how far your skills will take you. IF you are being paid to be a professor, then act like one and model objectivity and rational, fact-based reasoning and logic.

The post above does not.

[Deep State Special Legal Counsel]

^^^For the sake of comity bi- partisanship, impartiality and academic civility on this blog, I will put in a plug for the Starr Report, especially the cigar story. PEE PEE TAPE and CIGAR There now.

[twbb]

Not my specialty, but I thought sovereign immunity was waived only in connection with the tortfeasor's commercial activity or a non-discretionary function. I don't see how espionage makes up either of these.

[Anthony Gaughan]

Thank you for your comments, twbb. The complaint alleges that the hack represented both a trespass on DNC property (in violation of 1605(a)(5), the tort exception) and a form of economic espionage (in violation of 1605(a)(2), the commercial activity exception).

It's not clear that any of the Russian defendants will respond to the lawsuit, but if they do it will be very interesting to see if they make an argument along the lines of the one you suggest. The only thing that seems certain is that we are in unchartered territory with this case and with the unusual fact pattern that surrounds it.

Thanks again for your comment.

[Anthony Gaughan]

Thank you for your comments, Bernie. I suspect that the DNC's strategy was to file the lawsuit now, before the statute of limitations runs, and then seek a stay of the civil action until the criminal investigation is completed. But who knows! Thanks again for your comment.

[Anthony Gaughan]

Thank you for your comments, Jared. The date that looms large in my mind is November 6, when control of the House of Representatives could potentially change hands. If that happens, I think the House is very likely to play a major role in the Russia probe, starting January 3, 2019, when the 116th Congress is sworn in. Thanks again for your comments.

[Anthony Gaughan]

In The New Yorker today, Jeffrey Toobin has an interesting piece on the DNC case. He points out that the judge in the DNC case, John Koeltl, served as a prosecutor in the 1970s on the Watergate Special Prosecution Force.

[Bernie Burk]

To clarify for "Jared" (4/24 at 4:36 pm), my concern about broadly permissive pleading standards and discovery scope is not that the defendants are ultimately going to find anything that forms any plausible basis for criminal, or even civil, liability. The point is the disruption, expense, and opportunity to find dumb things (like Debbie Wasserman Schultz's inappropriate and unnecessary partisanship) that make the Democratic Party at large look stupid or ungoverned when their resources and attention ought to be focused on winning elections, particularly the 2018 Congressional midterms.

As I mentioned, the situation also creates opportunities for the defendants to get free looks into, and free shots at, the Mueller team's process (or that of the SDNY with respect to Michael Cohen) by leveraging their kooky conspiracy theories.

I view the lawsuit as proof that the DNC still doesn't realize how to stick to its knitting, or even what its knitting actually is.

--Bernie

[Jared]

To Bernie’s point - The Democratic Party might be shown to be ungoverned? Well, that is not necessarily a bad image for a grass roots movement that is doing pretty well in Special Elections for the last year or so.

The Republicans will make hay and investigate regardless of a basis for doing so. Dems cannot be too concerned about giving them fodder; Republicans have shown a tendency to make it up if they do not have anything - see, eg, Obama’s birth certificate. The DNC lawyers can work on this case while the rest of the DNC focuses on the midterms - discovery is several motions to dismiss away anyway.

[anon]

This blog should be retitled:

The Left-Wing Faculty Hotspot: A place to vent your wildest fantasies and spout the Democratic Party Talking Point of the Day

[Bernie Burk]

One last try, Jared:

"The Republicans will . . . investigate regardless of a basis for doing so." Except that's exactly what's NOT happening. FBI and Justice are ignoring Trump's demands to investigate various alleged misdeeds by Hillary and the Democrats. Devin Nunes threw a wrench into his own investigation and shut it down. And interests on the right notably did NOT cast the first stone in this civil suit. Moreover, the defendants' first move is not going to be an Answer, Counterclaim, and set of document requests and deposition notices; it is going to be a motion to dismiss. Only if the motion to dismiss fails can we expect tit-for-tat pleading and discovery, because at that point what else do they have to fight back with?

But with a Special Counsel deep into his investigation and the SDNY now presumably convening a grand jury on Michael Cohen, the DNC doesn't need civil discovery. I hold fast to my take that this tactic is at best useless and distracting, and at worst self-destructive.

--Bernie

[Jared]

Bernie - I think you missed the news. The Republican-run FBI and Justice Department, at the behest of the Republican President and Congress, is investigating all sorts of Republican conspiracy theories about Hillary and the Democrats. Here are some examples:

https://www.nbcnews.com/news/us-news/prosecutors-ask-fbi-agents-info-uranium-one-deal-n831436

http://thehill.com/homenews/campaign/367541-fbi-launches-new-clinton-foundation-investigation

Neither the Special Counsel nor the SDNY US Attorney are Democrats. These are all Republican-run investigations. If they have not found anything on Hillary and the Dems it is not for a lack of trying.

[anon]

Bernie

It is a waste of time to argue logically with leftist ideologues. The key to their psyches is a total, absolute and invariable inability to hold a mirror up the their own party and their own partisans and take a good hard look. They just can't acknowledge even the possibility that they, too, may be suspect and sometimes corrupt.

Examples? Where to begin? Track the statements by the Democratic Party about James Comey. Read the truth about efforts by the DNC to use "Russians" (thru three cut outs) to concoct lies, and then efforts to insert those lies into the 2016 election. Read Donna Brazile's book. How did the DNC respond to the FBI's efforts to investigate the hacking? Did it cooperate fully?

The point isn't that one party is worse than the other.

THe point is that one party won't look itself in the mirror. The hate and the anger and single-minded determination to "win" at all costs (by undoing the last election) is all that these can think about.

Their sanctimony and self-righteous attitudes are thus all the more disgusting.

This is especially significant when academics fall prey to this aberration. They are destroying any credibility that academia retained, by losing all sense of proportion, logic and objectivity. (As to the latter, many have started attacking objectivity, believe it or not.)