July 17, 2017
A Lawsuit to Watch

Recently I’ve seen a lot of references to the Lawfare blog, where Benjamin Wittes, a friend of James Comey, is a principal. There are many other interesting pieces besides his, which is kind of a problem because I don’t really have time to read all this stuff.

Today Wittes has a piece about a civil suit that he finds interesting. The suit alleges that the Trump campaign and Roger Stone conspired with Russians to release information about the plaintiffs, who are not public figures, that violates their privacy rights according to laws in D.C. and intimidates them with respect to future advocacy. One interesting aspect of the suit is that, at least in Wittes’s view, there’s no question of standing; the plaintiffs offer to show clear harm directly related to the alleged conspiracy. Also, the plaintiffs did not name Trump himself, so there’s no argument that the President is immune from lawsuits.

In short, the ramifications of the possible progress of this lawsuit are extensive.

I’m no expert on civil conspiracy or privacy suits, but the allegations in this one strike me as presenting a pretty clean legal theory that very likely states a claim. The case’s weakness is that a lot of its allegations are, at this stage anyway, speculative. The complaint alleges a level of coordination between the campaign and the Russians that the public record does not yet support — for example, when it alleges that “Defendants entered into an agreement with other parties, including agents of Russia and WikiLeaks, to have information stolen from the DNC publicly disseminated in a strategic way that would benefit the campaign to elect Mr. Trump as President.” But remember, on a motion to dismiss, the court will have to assume these allegations true. A plaintiff is allowed to plead things “on information and belief,” after all, and it’s more norm than exception at the complaint stage to use public facts to hypothesize larger allegations one believes to be true but cannot at this stage prove. I think, in short, that this case is very likely to survive that motion to dismiss.

And that means the plaintiffs will get discovery.

The pleading is rich — very rich and intentionally so, I suspect — with allegations that will provide for plausible discovery requests against all kinds of actors and on all kinds of subjects. It makes reference to the President’s tax returns, for example. It names a large number of individuals, whose depositions plaintiffs might plausibly seek. One of the defendants is the campaign itself, meaning that the campaign’s agents, actors, employees, and documents, are all potentially subject to discovery. So if I’m right that the suit eventually survives that initial motion to dismiss, it will immediately become a gold mine for journalists and investigators. And it will present an intense set of headaches for the Trump forces both inside and outside of government. Think Paula Jones, but not about a single act of alleged harassment. Think Paula Jones — only about everything.

Yeah, discovery would be bad news for the amoral Trump clan, who only follow the law when it suits them.

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Posted by Chuck Dupree at July 17, 2017 11:03 PM
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