Executive Branch

A New Front Opens in L'Affaire Russe

Benjamin Wittes
Monday, July 17, 2017, 6:15 PM

Don't look now, but a new front has opened in L'Affaire Russe. It will be a quiet one at first, but I suspect it won't stay quiet for long.

The new front is civil litigation.

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Don't look now, but a new front has opened in L'Affaire Russe. It will be a quiet one at first, but I suspect it won't stay quiet for long.

The new front is civil litigation.

Last week, a group called United to Protect Democracy filed suit against the Trump campaign and Roger Stone on behalf of three people whose emails and personal information were among the material stolen by the Russians and disclosed to Wikileaks. The suit alleges that the campaign and Stone conspired with the Russians to release information about the plaintiffs—who are not public figures—in a fashion that violates their privacy rights under D.C. law. and intimidates them out of political advocacy.

Here's the complaint, which Quinta Jurecic posted last week.

The case is a sleeper. Before the litigation goes anywhere, after all, it's going to have to survive the inevitable motion to dismiss, and litigating that will take a while. But I think it's going to end up being a big deal, for a combination of reasons that I will spell out briefly. (Disclosure: United to Protect Democracy also represents me in some Freedom of Information Act requests.)

For starters, the case is clearly justiciable and is unlikely to be dismissed on standing grounds. Unlike plaintiffs in a number of other litigations facing Trump right now, there's no serious standing issue here. The plaintiffs clearly allege that they had their personal information stolen and released and that they suffered real consequences as a result. There's just no question that this complaint alleges injury in fact or that it seeks relief of a type courts normally grant. What's more, the case does not present in any sense a political question or a matter that courts are likely to duck. And cleverly, it also doesn't name the President himself as a defendant, so there's no argument—as there is with some other cases—that the suit cannot proceed because of presidential immunity.

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.

So watch this one closely. It'll be a sleeper for a while, but If I were the Trump forces, I'd be very worried about it.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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