With no evidence, can a weak DNC lawsuit against Russia and Trump survive scrutiny?

With no evidence, can a weak DNC lawsuit against Russia and Trump survive scrutiny?
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A multimillion-dollar lawsuit filed last week by the Democratic National Committee against more than a dozen defendants, including Russia, WikiLeaks and the Trump campaign, has been met with equal portions of support and derision. Predictably, President TrumpDonald John TrumpFive takeaways from Trump-Biden debate clash The Memo: Debate or debacle? Democrats rip Trump for not condemning white supremacists, Proud Boys at debate MORE tweeted his contempt: “So funny, the Democrats have sued the Republicans for Winning. Now [t]he R’s counter and force them to turn over a treasure trove of material, including Servers and Emails!”

Filed in federal district court in Manhattan, the lawsuit lays out a conspiracy naming the general staff of the Armed Forces of the Russian Federation; Trump’s son, Donald Jr.; his son-in-law and senior adviser Jared KushnerJared Corey KushnerAbraham Accords: New hope for peace in Middle East Tenants in Kushner building file lawsuit alleging dangerous living conditions Trump hosts Israel, UAE, Bahrain for historic signing MORE; the president’s former campaign manager, Paul ManafortPaul John ManafortTop Mueller prosecutor: 'I would have subpoenaed' Trump during investigation FBI official who worked with Mueller raised doubts about Russia investigation Our Constitution is under attack by Attorney General William Barr MORE; and several John Doe intelligence officials. The committee brought the legal action under provisions of the Computer Fraud and Abuse Act, Racketeer Influenced and Corrupt Organizations Act (RICO), the Stored Communications Act, and the Digital Millennium Copyright Act.

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The tale of conspiracy that it weaves is a tall tale indeed, and it will be difficult for the DNC to win over the court with its arguments — if the lawsuit even endures.

 

The DNC alleges that Russia hacked into its computers, stealing “tens of thousands of documents and emails” and using this stolen information to destabilize the U.S. political environment, denigrate Hillary ClintonHillary Diane Rodham ClintonHillary Clinton after debate: 'Everyone better vote' Hillary Clinton: 'Black Lives Matter' is 'very profoundly a theological statement' House in near-unanimous vote affirms peaceful transfer of power MORE and, ultimately, boost Trump into a winning position because the Russians believed that his policies “would benefit the Kremlin.”

The complaint alleges that in 2016, Kremlin operatives “notified the Trump campaign that Russia intended to interfere” with the election, expressing their government’s preference for Trump via meetings, emails and other communications. This included a willingness “to use stolen emails and other information” to damage Clinton’s campaign.

The Russians supposedly had two motivations for this conspiracy — first, Vladimir Putin’s intense dislike of Clinton, stemming from his belief that she was behind massive protests in Russia in December 2011, and second, Trump’s perceived admiration of Putin. The DNC claims these motivations provided the “common purpose” for the conspiracy and that WikiLeaks founder Julian Assange was part of the conspiracy because of his “long history of conflicts” with Clinton and belief that her victory would be problematic.

The problem for the Democrats is that there is virtually no factual basis for this conspiracy between Trump and the Russians. The complaint relies on public information about vague business dealings that it claims provided “fertile ground for a conspiracy.” In addition, the DNC’s evidence is extremely weak — mainly, comments made by Trump about Putin, such as a 2007 remark that Putin is “doing a great job in rebuilding the image of Russia”;  a comment in 2008 that he liked and respected Putin, who “does his work well, much better than our Bush”; and Trump’s 2014 characterization of Putin’s invasion of Ukraine as being “so smart. ... And [Putin] really goes step by step by step, and you have to give him a lot of credit.”

The lawsuit alleges that Manafort had more substantial ties with Russian operatives, as did George PapadopoulosGeorge Demetrios PapadopoulosTale of two FBI cases: Clinton got warned, Trump got investigated Trump says he would consider pardons for those implicated in Mueller investigation New FBI document confirms the Trump campaign was investigated without justification MORE, once a member of the Trump campaign’s foreign policy advisory panel. The DNC notes there were contacts between Assange, an unnamed Russian operative and Rick Gates, a former lobbyist and political consultant who was the campaign’s deputy chair.

Taken together, the elements of conspiracy outlined in the lawsuit simply are not satisfied. The stray comments by Trump aside, there is no evidence of intent by the campaign to enter into some sort of agreement with Russia. Equally, the mere possibility that Trump’s election might advance Russia’s interests is insufficient evidence for a conspiracy. The link between the acts alleged and their ultimate goal — that is, to elect the Republican candidate — is simply too weak.

Next, the DNC’s claim that the Trump campaign violated the RICO statute also is likely to fail. The lawsuit alleges that “Trump associates, WikiLeaks … directed, induced, urged, and/or encouraged Russia … to engage in this conduct and/or to provide … DNC’s trade secrets, with the expectation that WikiLeaks and Assange would disseminate those secrets” to help Trump win.

The problem: a Department of Justice indictment against 13 Russian individuals and entities in February 2018 for election interference appears to contradict this allegation. The indictment does not address the hacking of Democratic email systems, and makes it clear that there was no collusion between the Russians and anyone in the Trump campaign. In announcing the indictment, Deputy Attorney General Rod RosensteinRod RosensteinMueller in rare statement pushes back on top aide's criticism of investigation This week: Senate kicks off Supreme Court fight DOJ kept investigators from completing probe of Trump ties to Russia: report MORE specifically stated that no U.S. individuals were known to have colluded with the Russians.

Finally, the lawsuit may not overcome Russia’s immunity under the Foreign Sovereign Immunities Act (FSIA). A foreign country enjoys absolute immunity unless a case falls within one of the specified exceptions. Immunity “does not extend to suits based on [a country’s] commercial or private acts.”

The DNC lawsuit does appear to invoke an exception in the statute — that a sovereign does not enjoy immunity where there is “damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” Crucially, the tort must involve a non-discretionary act — i.e., where there is no choice or judgment by the foreign state or official. There is no evidence that the Russian officials’ actions were non-discretionary — in other words, we don’t know for certain that the Russian government ordered these operatives to hack into DNC computers.

The committee claims that Russia “trespass[ed] onto the DNC’s private [computer] servers” and that this should preclude immunity. This is an interesting theory because the email servers were located in Virginia and, if the hacking is said to have taken place on U.S. soil, sovereign immunity may not protect Russia. However, the hacking itself likely took place from outside the United States, even though the damage was sustained here. The theory may not work because the statutory exception has been interpreted narrowly in case law.

In the end analysis, a judge is likely to dismiss the DNC’s case because of its shaky legal ground. As a long shot, however, if the case survives and proceeds to trial, it would provide a roadmap for future actions against foreign states that seek to interfere in elections.

Sandeep Gopalan is a professor of law and the pro vice chancellor for academic innovation Deakin University in Melbourne, Australia.