So it has been awhile since we had one of these (thankfully), but the worst idea of April 2018 is a great representative of the silliness seemingly assaulting our politics these days.This past Friday, April 20, lawyers representing the Democratic National Committee (DNC) filed a long-winded lawsuit against a large number of parties, including the President’s 2016 campaign, a Russian military intelligence unit, and Trump campaign members like Paul Manafort, for allegedly acting in a conspiracy to hack the DNC’s email servers and release the information in a manner intended to benefit then-candidate Trump. The lawsuit has gotten a lot of traction on cable news and in Democratic circles online, but it is really a non-starter in multiple ways, as well as being a poor political move on the part of the DNC.
The actual crime that can and should be prosecuted here, as well as the only reasonable part of the lawsuit in my eyes, is the hacking of the DNC servers that occurred in 2015 and 2016. That hacking will likely fall under the Computer Fraud and Abuse Act (CFAA) and/or the Stored Communications Act (SCA), and the perpetrators, directly involved with the GRU (the Russian military intelligence unit) and living in Russia, will likely be criminally charged with those actions by the special counsel.
In terms of issues with the DNC suit, there are many. First off, there is no established nexus between those named as defendants in the lawsuit and the actual crime I mentioned above, which is required to have any sort of legitimacy when it comes to charging someone with a conspiracy-type allegation. Let me briefly explain what a nexus is in this circumstance: it is simply a solid, verifiable connection between those involved in the supposed conspiratorial actions. The defendants in this lawsuit do not have that actual connection to the perpetrators of the crime that was committed, namely the hacking of the DNC servers back in 2015 and 2016. The DNC cites multiple US government reports, as well as private organization investigations, to create this nexus between the Trump campaign and the hackers in Russia, but the evidence provided is slim and unconvincing (unless you’ve already made up your mind on the issue, which I will come back to later). It is more than reasonable to think that the Russian government was in some way involved with the DNC hack (which I do); what is less obvious is the direct connection between that hacking and the Trump campaign or even Wikileaks, another defendant in this suit. There is a very high bar for establishing this sort of potentially criminal connection (and rightly so), and I do not feel that the evidence provided meets the bar.
Even if there was plenty of evidence to establish this connection, the Russian defendants which are parts of the Russian state apparatus (the GRU, etc.) may not even be liable for their conduct. Sovereign immunity is a hell of a drug, so to speak, and would possibly cover the malign Russian actions taken with respect to the hacking of the DNC servers. An excellent blog post from lawyer Max Kennerly does a great job of breaking down the sovereign immunity issue, which is based on the Foreign Sovereign Immunities Act of 1976 (FSIA). This act allows charges for acts that are tortious in nature (hacking certainly is) and do not fall within the “policy of the regulatory regime” of the country being charged. It is, however, more than arguable that Russia’s express policy was to hack the DNC servers and cause chaos in the 2016 US elections, therefore any actions coincident with that policy would be excepted from the FSIA. This seems like a huge loophole, but it is necessary to protect foreign governments from being sued for their policies which the plaintiff simply disagrees with. In this case, the Russian government likely gets away with criminality, but that’s the way the cookie crumbles.
Now that I’ve touched on why the Russian defendants are likely immune from this suit, let’s see why the US defendants should likely be dismissed (or at least have a solid defense) as well. Not only do they have a reasonable claim of not actually being connected to the crime committed, but they have serious free speech defenses when it comes to their undeniable use of the hacked material for political gain. The hacked emails from the DNC servers were absolutely a matter of “public interest”, and this allows reasonable use of those documents for whatever (noncriminal) purpose. Even Wikileaks, which published the stolen emails, has a defense here; illicitly obtained documents are often used in newsworthy reporting, and this is not illegal under US law as long as the publisher did not directly become involved in the capturing of those documents (see the Panama Papers for an example of when this doctrine is an unalloyed good). None of the actors charged in the lawsuit were ‘neutral’ or ‘objective’, but since when has free speech revolved around those concepts? Anyone can speak freely about stolen documents without legal liability, and this applies to those on all sides of the political spectrum.
Besides the issues I’ve raised above, there are a few more to keep an eye on with respect to this suit. One is that the US government may get directly involved with the case and push for dismissal. How and why could they do this, and wouldn’t it be a conflict of interest? Well, actually that isn’t the case. The US government can and often does intervene in lawsuits or legal proceedings against foreign sovereigns if the government believes the suit will adversely impact international relations or foreign policy. This is long-standing doctrine and very well could be used to dismiss the case on the grounds it would negatively hit our already-contentious diplomatic relationship with Russia. Another issue is the DNC’s claiming of RICO violations by the defendants. RICO (the Racketeer Influenced and Corrupt Organizations Act) was passed in 1970 to fight against criminal organizations like the mafia, and is (appropriately) used when the whole purpose of an organization is to commit crimes. According to lawyer Ken White, RICO is not meant to target “organizations that do criminal things in pursuit of their goals, but organizations whose purpose is criminal” (emphasis added). This is a crucial distinction. I doubt anyone but the most hardcore Trump hater would think the direct purpose of the 2016 Trump campaign was the commission of crimes. RICO is often misused by plaintiffs as well as folks on the internet, but the standard for meeting a RICO claim is extremely high (again, for a good reason) and most judges find the Act overused. In fact, RICO lawsuits are very commonly dismissed for improper filing as the Act is incredibly specific. Filing a RICO claim simply gives the defense something to attack and could result in the whole suit being dismissed (even if it is otherwise legitimate).
So why file this lawsuit now, if at all? The only reason the DNC filed the lawsuit they did, when they did, was to avoid a lapsing of the statute of limitations on the allegations they chose to bring (the plaintiff has 2 years from the incident to bring an action before a court). The likelihood is that the DNC filed the suit to avoid the statute of limitations dropping, as well as to try to keep the Russian collusion story in the news without any sort of Mueller connection. The result is a legal strategy that has been suborned to public relations goals; basically the throwing of red meat to the Democratic base which has been baying for the ‘blood’ of the Trump campaign for over a year now. I firmly believe this will backfire. This ill-advised lawsuit will likely be associated with the special counsel’s probe (rightly or wrongly), and will only serve to further polarize opinions on the critically important work Mueller is doing with his team (as it introduces no new evidence and seeks to convince no one new). Investigating the Russian interference with the 2016 election is serious work and we should all (regardless of party affiliation) want to get to the bottom of what happened so as to preclude it from happening again. All this lawsuit does is make the investigation by the special counsel seem politically motivated (it isn’t) and push the focus back to re-litigating (pun intended) the contentious 2016 election.
We need to be focusing on how to prevent this sort of attack again, especially given the fact we have a major Congressional election later this year. Taking one’s eye off the ball at this late juncture will only result in a strikeout on the merits which harms all of us as Americans.