Monday, April 23, 2018

DNC Lawsuit Part 2: U.S. Intervention, Mueller, Free Speech, And The End-Game

 
My prior post went through the basics of the DNC Lawsuit against Russia, the Trump campaign, Wikileaks, and the individuals affiliated with each of them, specifically:

  1. Why Now
  2. Why The Complaint Alleges Those Causes Of Action
  3. Whether Russia And Its Agents Have “Sovereign Immunity”
  4. The “Plausibility” Pleading Requirement For The Case To Go Forward

Today we’ll follow up with four big-picture issues:

  1. The Potential Role Of The U.S. Government
  2. The Role Of Parallel Criminal Prosecutions
  3. The First Amendment Issues
  4. What This Lawsuit Can Actually Accomplish

V. The Potential Role Of The U.S. Government

 
 
My prior post talked about the Foreign Sovereign Immunities Act (“FSIA”), which sets out when foreign governments can be sued in United States courts. To sum up that discussion in a sentence, it’s unclear whether Russia (and the GRU and its agents) can be sued at all for hacking the DNC. “Computer network exploitation,” or “CNE,” is far closer to a matter of governmental policy than, say, an employee at the Russian embassy running a red light and hitting a pedestrian, or the Russian embassy ordering a pizza delivery and refusing to pay for it, both of which would clearly fall within the FSIA’s grant of jurisdiction to sue.
 
 
 
This post discusses something different: whether the United States under the Trump Administration can (and might) intervene in the DNC’s lawsuit.
 
 
 
The United States frequently intervenes in lawsuits against foreign governments. As a Congressional Research Service report from 2008 said,

In 1996 Congress amended the Foreign Sovereign Immunities Act (FSIA) to allow U.S. victims of terrorism to sue designated State sponsors of terrorism for their terrorist acts. The courts have handed down large judgments against the terrorist State defendants, generally in default, and successive Administrations have intervened to block the judicial attachment of frozen assets to satisfy judgments.

As one example, in Acree v. Republic of Iraq, 17 American soldiers who were captured and tortured during the 1991 Gulf War sued the Republic of Iraq for compensatory and punitive damages. The United States tried to intervene in the case, the District Court denied the intervention, but the D.C. Circuit reversed, holding “the District Court abused its discretion in finding the United States’ motion to intervene to be untimely and erred in denying that motion. The United States possesses weighty foreign policy interests that are clearly threatened by the entry of judgment for appellees in this case.” Acree, 370 F.3d 41, 43 (D.C. Cir. 2004).
 
 
 
In many ways, our analysis here is far less complicated than in most of the cases, because (a) the DNC does not raise claims relating to terrorism, which have their own statutes and (b) Congress has not passed a statute specific to this situation, which it has done in other lawsuits against foreign governments. The DNC lawsuit instead has a rather straightforward application of Federal Rule of Civil Procedure 24(a), which says:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who …  claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

That was the basis for the United States intervening in Acree. It’s difficult to dispute that the United States has “an interest relating to … the subject of the action,” not least because of the potential effect on diplomatic relations, the existence of multiple governmental investigations into the DNC hack (i.e., the same reports referenced by the DNC’s complaint, as discussed in my prior post), and the ongoing Special Counsel investigation and the indictments already filed. If the United States wants to intervene in the case, it’s hard to see how a court could tell them “no.”
 
 
 
Will the United States intervene? I wouldn’t be surprised if they did, and, if they did, there’s nothing necessarily suspicious about it. As discussed above, the United States has a history of intervening in lawsuits involving foreign governments. (That isn’t to say anything the Trump Administration does with respect to this case is beyond criticism; if, for example, the Administration intervened and took positions that appeared designed more to benefit the Trump campaign than to serve the foreign policy interests of the United States, that would be worth evaluating more closely.)
 
 
 
Attorney General Sessions has recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” Presumably by “investigations” he meant investigations by the Department of Justice, which wouldn’t necessarily apply to intervention in the DNC’s civil suit. However, I hope for everyone’s sake he recuses himself from this issue as well, so that the decision is made by Deputy Attorney General Rosenstein, which would mitigate the appearance of a conflict of interest. Indeed, it’s possible that Special Counsel Mueller files to intervene, on the basis of the on-going investigation. Neither of these actions would suggest anything untoward — they are what we would expect in this situation, regardless of the underlying politics.
 
 
 
Once the United States intervenes, they can raise a host of arguments, from immunity under FSIA to the “political question” doctrine.
 
 
 
If you saw Narcos on Netflix, you might recall the real-life case of Kiki Camarena, a DEA agent abducted, tortured, and murdered by drug cartels — and the DEA’s retaliatory response, which was so aggressive that cartels thereafter refrained from harming DEA agents. Part of that response involved kidnapping, without the permission of the Mexican government, a physician alleged to have participated in the torture and bringing him back to the United States. He was tried, acquitted, then returned to Mexico, after which he brought suit against the DEA and the people involved. I mention his case because of a footnote in the Supreme Court’s opinion dismissing it:

Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches. For example, there are now pending in federal district court several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. The Government of South Africa has said that these cases interfere with the policy embodied by its Truth and Reconciliation Commission, which “deliberately avoided a `victors’ justice’ approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.” The United States has agreed. In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy. Cf. Republic of Austria v. Altmann, 541 U. S. 677, 701-702 (2004) (discussing the State Department’s use of statements of interest in cases involving the Foreign Sovereign Immunities Act of 1976, 28 U. S. C. § 1602 et seq.).

Sosa v. Alvarez-Machain, 542 U.S. 692, 733, Fn 21 (2004)(record citations omitted). The full passage in the case referenced, Altmann, rejected the idea that the courts have to defer to the United States’ interpretation of FSIA, but added:

[S]hould the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy. See, e. g., Verlinden, 461 U. S., at 486; American Ins. Assn. v. Garamendi, 539 U. S. 396, 414 (2003) (discussing the President’s “`vast share of responsibility for the conduct of our foreign relations'”). We express no opinion on the question whether such deference should be granted in cases covered by the FSIA.

Republic of Austria v. Altmann, 541 U. S. 677, 701-702 (2004). As the Supreme Court elaborated in Altmann, “we do not hold, however, that executive intervention could or would trump considered application of the FSIA’s more neutral principles,” and thus the Executive doesn’t have a blank check to stop lawsuits against foreign governments by simply asserting the case could affect foreign policy.
 
 
 
Nonetheless, one of the central issues raised by the DNC’s lawsuit — whether Russia should be held accountable for hacking into the DNC’s servers and then using that information to affect the 2016 election — sounds very much like a “political question.” The “Countering America’s Adversaries Through Sanctions Act” was passed by Congress to impose “sanctions with respect to activities of the Russian Federation undermining cybersecurity,” and it referenced intelligence community findings that “Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the United States presidential election.”
 
 
 
The decision whether or not to allow the case to continue remains in the power of the federal courts, not the Executive; that’s a basic Marbury v. Madison issue. Nonetheless, the Executive’s views on whether or not the DNC’s lawsuit could impact foreign policy will factor into the District Court’s analysis (and, if it gets there, the Circuit Court’s and potentially the Supreme Court’s analyses).
 
 
 

VI. The Role of Parallel Criminal Prosecutions: Mueller’s Investigation Doesn’t Necessarily Stop The DNC Lawsuit

 
 
In general, “The Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.” Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995). Yet, as Keating continued, “Nevertheless, a court may decide in its discretion to stay civil proceedings when the interests of justice seem to require such action.” Id. (citations omitted). The Second Circuit Court of Appeals would hear any appeal from the DNC lawsuit, and it has similarly ruled:

The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Courts may defer civil proceedings pending the completion of parallel criminal prosecutions when the interests of justice seem to require such action. Although civil and criminal proceedings covering the same ground may sometimes justify deferring civil proceedings until the criminal proceedings are completed, a court may instead enter an appropriate protective order. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.

Louis Vuitton Malletier SA v. Ly USA, Inc., 676 F. 3d 83, 97 (2d Cir., 2012). The Second Circuit noted, “so heavy is the defendant’s burden in overcoming a district court’s decision to refrain from entering a stay that the defendants have pointed to only one case in which a district court’s decision to deny a stay was reversed on appeal, and that case was decided more than thirty years ago.” Id. at 100.
 
 
 
My point in raising all this is simple: to show that the court has ample flexibility in deciding whether or not to stay the litigation and wait for the Mueller investigation (and, e.g., the Papadopolous prosecution) to conclude, or to limit the proceedings in some way, or to plow forward with all deliberate speed.
 
 
 
In terms of testimony and the production of documents, five years ago I wrote about “Pleading The Fifth Amendment And Adverse Inferences In Civil Litigation.” Although “taking the Fifth” has tremendous power in criminal prosecutions, the effect on civil litigation is far more limited. As I wrote then,

Although in a criminal procedure, the court must instruct the jury that it cannot draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case, Griffin v. California, 380 U.S. 609 (1965), in civil cases, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

Thus, when a defendant’s criminal rights are at stake, the defendant can still choose to “take the Fifth” and avoid testifying or producing documents, but the court and the plaintiffs can use that against them, and can even instruct a jury to use that against them, and to presume that the defendant plead the Fifth to avoid revealing incriminating information.
 
 
 

VII. First Amendment Issues: Most Of The Defendants Have Colorable Free Speech Defenses

 
 
Let’s go back to January 27, 2010, when President Obama delivered his State of the Union, which included:

Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Obama was referring to the Citizens United opinion. Justice Alito, who was in attendance and who had joined the majority in Citizens United, famously shook his head and mouthed “not true.”
 
 
 
I don’t raise this to re-litigate Citizens United, but to note that the zone of “free speech” surrounding political figures is quite broad under the current precedent. In McDonnell v. U.S., 136 S. Ct. 2355 (2016), for example, the Supreme Court invalidated a corruption conviction in part because:

[T]he Government’s expansive interpretation of “official act” would raise significant constitutional concerns. … [C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns — whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.

The scope of McDonnell is so broad that it effectively ruined the corruption prosecution against Senator Robert Menendez.
 
 
 
There’s of course no First Amendment right to hack into someone’s computer servers and steal information. But what about a political candidate exploiting the fruits of a hack of their opponent? It doesn’t seem like there were any smoking guns contained within the DNC’s files, but it’s hard to deny that they were, at least to some extent, matters of “public interest.” That gets us into far more complicated territory. We don’t have enough facts yet to develop these arguments, but it’s likely everyone associated with the Trump campaign will raise a free speech defense to some, potentially all, of the allegations.
 
 
 
A similar analysis applies to Wikileaks. Media outlets frequently utilize materials that obviously came to them from unlawful activity of some sort, like the Panama Papers, which changed the political landscape world-wide for the better. At some point, a media outlet’s advance cooperation with hackers might subject them to joint liability for the unlawful conduct — but, as of yet, it does not appear there is any publicly-available evidence suggesting Wikileaks coordinated the hack with Russia or its GRU intelligence unit.
 
 
 
The disclosed communications reveal Wikileaks was hardly a neutral or objective player in its use of the DNC’s documents, and that it sought specifically to boost the Trump campaign, but “neutral” and “objective” aren’t the standard for free speech protections. To the contrary, courts tend to avoid looking at the viewpoint advanced by the speaker, and instead look to the overall nature of the conduct. “The First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394 (1993).
 
 
 

VIII. What Can This Lawsuit Actually Accomplish?

 
 
As I mentioned in my first post, it seems to me the DNC’s lawsuit was prompted by a simple fact: the statute of limitations for their claims was about to run. (Specifically, the statute of limitations for the Computer Fraud & Abuse Act and Stored Communications Act claims.) It was now or never, and the DNC made the decision to file it now rather than lose their right to ever file it.
 
 
 
So, what’s next? In my humble opinion, the DNC has solid CFAA and SCA claims against Russia, Russia’s GRU, and any hackers it can personally identify. The DNI investigation into Russia’s efforts to influence the election, the DHS/FBI investigation into “Grizzly Steppe,” and the CrowdStrike investigation into the DNC hack provide more than enough for a “plausible” claim that should survive a motion to dismiss.
 
 
 
But that’s just about all the DNC has going for it – even for those claims, pursuing them now walks right into Russia’s FSIA defense (and potential intervention by the United States), and if Russia and its agents are dismissed early, the rest of the case will likely fall apart completely, because Russia’s role in the alleged facts is likely so central that the other parties cannot be held liable without them. Moreover, the current facts against the other parties are weak. As a political matter, there is a lot that can be drawn from what we know about the contacts between the Trump campaign, Wikileaks, and Russia, but as a legal matter it is hard to see how the non-Russia parties can be held liable for anything on the existing record. It is likely in the DNC’s best interest to wait for the Mueller investigation to continue producing something, be it more indictments or a report that is made public or something else that can help bolster their allegations.
 
 
 
If I represented the DNC, I’d probably upfront admit the statute of limitations issue to the court and ask the court to stay all of the proceedings until, at the earliest, the Special Counsel investigation either concluded or at least indicated that it had finished its work relating to the Trump campaign. Whether they do that, and whether the court would grant it, is another matter.


DNC Lawsuit Part 2: U.S. Intervention, Mueller, Free Speech, And The End-Game posted first on http://helloinjuryhelpnowposts.tumblr.com

Saturday, April 21, 2018

The Who, What, Where, When, & Why of the DNC Lawsuit

 
Earlier today, the Democratic National Committee filed a massive lawsuit against almost everyone arguably associated with the hack on the DNC’s servers, including the Russian Federation, Russia’s foreign military intelligence agency (GRU), the hacker known as “Guccifer 2.0,” Wikileaks, Donald J. Trump for President, Inc., Donald Trump, Jr., Jared Kushner, Roger Stone, and others who have been, in press reports or in filings from the Special Counsel, alleged to have served as conduits between Russia and the Trump campaign. (Notably, Donald Trump was not himself named.) The complaint raises a host of claims ranging from the Computer Fraud & Abuse Act, the Stored Communications Act, the Racketeer Influenced and Corrupt Organizations Act, to the Digital Millennium Copyright Act, and a couple of state law tort claims too.
 
 
I’ve discussed almost all of these types of claims on this blog before (see, e.g., CFAA here and here, SCA here, RICO here, DMCA here), so the archive is rich with information if you want to learn more. For our purposes here, we’ll break everything in this lawsuit down into manageable chunks:

  1. Why Now
  2. Why The Complaint Alleges Those Causes Of Action
  3. Whether Russia And Its Agents Have “Sovereign Immunity”
  4. The “Plausibility” Pleading Requirement For The Case To Go Forward
  5. The Potential Role Of The U.S. Government (Next Post)
  6. The Potential Role Of Parallel Criminal Prosecutions (Next Post)

 
 
 

I. The DNC Had To File This Case Now Or The Statute Of Limitations Would Have Run

 
The core of the DNC’s complaint is, of course, about the hack on their servers, and thus the core of the case revolves around claims under the Computer Fraud & Abuse Act (“CFAA”) and the Stored Communications Act (“SCA”).
 
 
 
As the complaint says, “on April 28, 2016, DNC IT staff detected and ultimately confirmed access to the DNC network by unauthorized users.” The DNC thus had just one more week before the statute of limitations would have run: claims under the CFAA and SCA have to be brought, respectively, “within 2 years of the date of the act complained of or the date of the discovery of the damage,” 18 U.S.C. § 1030(g) and “[not] later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation,” 18 U.S.C. § 2707(f).
 
 
 

II. To Understand The Lawsuit’s Causes Of Action, Put Aside Politics And Russia

 
The DNC’s Complaint looks like a smorgasbord of federal statutes and unusually-named common law claims, such as “conspiracy to commit trespass to chattels,” that give the impression of someone sneaking onto a farm and stealing a cow (which, truth be told, is indeed part of the historical origin of “trespass to chattels,” and of the phrase “caught red handed”). But the claims make sense in the context of the facts alleged.
 
 
 
Let’s start with a hypothetical to go through the alleged facts without politics getting in the way: the plaintiff is Wayne Enterprises (its former Chief Executive Officer is, of course, Bruce Wayne). Bruce Wayne has been regularly criticized by competitors in the media, and Wayne Enterprises’ computer systems remain under constant attack from hackers. It’s not unusual for Wayne’s competitor, Lex Luthor of LexCorp, to criticize him and point out his failings. It’s also not unusual for the League of Assassins to try to break into computers associated with him.
 
 
 
SIDENOTE: Before we go forward, perhaps you have questioned my decision to bless the DNC with the mantle of Batman while condemning Trump as Lex Luthor and Russia as the League of Assassins. That’s on purpose, so our hypothetical is consistent with the standard the court will apply when evaluating the initial motions in the case. When a federal court evaluates the allegations made by a plaintiff (such as when a court reviews a motion to dismiss a complaint), it assumes all of the properly-pleaded facts in the plaintiffs’ favor, along with all reasonable inferences that can be drawn from it. The court can (and will) ignore legal conclusions alleged by the plaintiff, as well as “facts” that seem to have no basis, but the court will not try to weigh the facts and decide who is right. Now, back to our hypothetical.
 
 
 
One summer, someone — government investigators and Wayne Enterprises’ cybersecurity firm both say it was likely the League of Assassins, but they don’t have a smoking gun or a confession — succeeds in hacking the company’s computers and stealing a large amount of information, including internal communications, copyrighted materials, and documents that are potentially trade secrets, and they start leaking that information through various channels. The situation is made even more frustrating by what appears to be an unusual amount of coordination with LexCorp and the leaked information, such that at least one consultant for LexCorp appears to have advance knowledge of the stolen information.
 
 
 
As the next year goes by, Wayne Enterprises learns of pre-existing connections between Lex Luthor and the League of Assassins. They also learn of meetings, emails, and other contacts between LexCorp employees and people associated with the League of Assassins that happened before the hack and which, in parts, suggest knowledge of the hacks. There’s a prosecutor looking into these issues, too — they’ve already filed indictments against multiple LexCorp employees for matters relating to the League of Assassins — but they won’t comment publicly on the status and Wayne Enterprises doesn’t have anything more than anonymously sourced press reports to determine where the investigation is going or when it will conclude.
 
 
 
So what does Wayne Enterprises do? It waits for as much information as it can get until the two year point, when the CFAA and SCA statutes of limitations will run, then it files a lawsuit with essentially the same claims raised by the DNC. It files a pile of claims relating to hacking / cybersecurity, like the Computer Fraud & Abuse Act, the Wiretap Act, the Stored Communications Act, the Virginia Computer Crimes Act, and a couple common law claims for trespass. It also adds claims relating to the specific property taken, like the Digital Millennium Copyright Act, and the federal and Washington D.C. Trade Secrets Acts.
 
 
 
Wayne Enterprises also files a RICO claim for a rather simple reason: because at the moment they don’t even know who actually hacked their servers — the ones the other claims are really aimed at — they just know the people that they believe were in on the conspiracy. One of the people they think is in on the conspiracy is Lex Luther’s son.
 
 
 
In real life, in the Complaint, that’s Donald Trump, Jr. Does anyone suspect that Donald Trump Jr. personally hacked the DNC servers? Of course not. At the very most, based on the allegations, he had knowledge of it having occurred and then exploited that for personal gain, which is hardly an ideal setup for tagging him with a CFAA claim, but which can fit into a RICO claim, or at least a RICO conspiracy claim. (We’re not yet getting into the merits of these specific claims. Accept this as an article of faith: despite the simple language in the statute, proving any form of RICO claim is quite difficult.)
 
 
 

III. Russia, the GRU, and Cyberattacks Under the Foreign Sovereign Immunities Act

 
Going way back, like The Schooner Exchange v. M’Faddon, 11 U.S. 116 (1812), the federal courts have recognized “sovereign immunity” for foreign governments, which prohibits them from being sued. Since 1976, however, the United States has had a codified, consistent method for determining when foreign governments may be sued under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1332, 1391, 1441, and 1602–1611 (not to be confused with the “Foreign Intelligence Surveillance Act,” which relates mostly to warrants for eavesdropping on matters of national security). A foreign state, as well as its “agents” and “instrumentalities,” are “presumptively immune from the jurisdiction of United States courts” unless one of the Act’s express exceptions to sovereign immunity applies. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993).
 
 
 
The DNC complaint identifies, in the most general form, the two exceptions they intend to rely upon: 28 U.S.C. § 1605(a)(5), which removes immunity for tortious acts committed in the United States, and 28 U.S.C. § 1605(a)(2), which removes immunity for commercial activities.
 
 
 
Starting with § 1605(a)(5), it sure seems like a foreign government hacking into a political committee’s files would count for tortious conduct — trespass is, of course, a tort — but the FSIA was written with much more banal factual circumstances in mind, like a car accident caused by a negligent driver who happens to work for a foreign government:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case … in which money damages are sought against a foreign state for personal injury or death, or 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;

except this paragraph shall not apply to … any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused

1605(a)(5)(italics added). That would be the “discretionary function” exception, and it is intentionally similar to the same “discretionary function” language contained in the Federal Tort Claims Act (“FTCA”), which outlines when the United States itself may be sued for causing injuries to persons or property. See Swarna v. Al-Awadi, 622 F. 3d 123 (2d Cir., 2010)(holding FSIA discretionary function exception should be interpreted in pari materia with FTCA).  
 
 
 
That’s a bit of a problem for the DNC, because the FTCA’s own “discretionary function” exception can be quite broad. As the Supreme Court held,

When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be founded in the policy of the regulatory regime. The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.

United States v. Gaubert, 499 U.S. 315-324 (1991). One relatively recent, and deeply frustrating, example involved the U.S. Army Corps of Engineers’ shocking failure to maintain Mississippi River Gulf Outlet Reach 2 Levee, resulting in the cataclysmic flooding of St. Bernard Parish and the Lower Ninth Ward during Hurricane Katrina. Judge Duval of the Eastern District of Louisiana presided over the ensuing litigation, finding the United States liable, just to see his decision metaphorically washed away by the Fifth Circuit. He wrote a law review article about it with a rather revealing title: “The Discretionary Function: License To Kill?” As he wrote, “If that analysis [by the Fifth Circuit] is correct, then the FTCA is practically meaningless for anything other than quotidian postal-car accidents or medical malpractice at a Veterans Administration Hospital.”
 
 
 
Coming back to our purposes, Russia’s alleged systematic effort to hack the DNC and then coordinate the release of documents to manipulate the 2016 election is certainly not a “quotidian postal-car accident.” It would appear to be the very sort of actions “founded in the policy of the [Russian] regulatory regime,” per Gaubert, and thus within the “discretionary function” exception, “regardless of whether the discretion be abused,” per § 1605(a)(5).
 
 
 
This sort of upside-down analysis in which the shocking nature of the alleged conduct works to the benefit of the defendant is, regrettably, somewhat commonplace in cases against government entities, whether it’s a claim against a foreign government, a tort claim against the United States, or a civil rights claim. Our liability regime is not well constructed for holding accountable those who abuse governmental power.
 
 
 
Moving to the other FSIA section cited by the DNC, the “commercial activities” clause says:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case … in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States…

1605(a)(2). The DNC’s complaint alleges, “Russia committed the trespass in order to steal trade secrets and commit economic espionage, two forms of commercial activity undertaken in and directly affecting the United States.”
 
 
 
A recent Supreme Court opinion on “commercial activity” under FSIA would appear to be problematic for the DNC, because the Supreme Court reiterated that, for a plaintiff to avoid sovereign immunity, their claim had to be “based upon” the commercial activity at issue and not, say, sovereign acts abroad. Obb Personenverkehr AG v. Sachs, 136 S.Ct. 390 (2015). That said, in a footnote, the Supreme Court said “caution is warranted here,” and that, although they found sovereign immunity for a claim against Austria involving a railroad accident in Austria, “domestic conduct with respect to different types of commercial activity may play a more significant role in other suits under the first clause of § 1605(a)(2).” Thus, the DNC might have a solid hook here: whatever else can be said about the hacking, it most certainly involved the domestic activity of breaking into the DNC’s servers in the United States and removing the materials from the United States.
 
 
 

IV. Does The DNC Allege A “Plausible” Link Between The Hacking And The Trump Campaign?

 
Among the worst words in current legal jargon is “Twiqbal,” a bad portmanteau of the names Twombly and Iqbal, both Supreme Court cases about the level of factual detail required by a plaintiff for their lawsuit to survive a motion to dismiss.
 
 
 
Discussions about pleading standards are like quicksand, and it’s easy to get lost in them. So instead I’m going to quote the Second Circuit (the appellate court that oversees, among others, the Southern District of New York where this case was filed):

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. We must accept as true all of the allegations contained in a complaint, though threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Though we are confined to the allegations contained within the four corners of the complaint, we may also consider any documents attached to the complaint as an exhibit or incorporated in it by reference.

Carlin v. Davidson Fink LLP, 852 F. 3d 207, 212 (2d Cir., 2017)(quotations and citations omitted).
 
 
 
It would be neither worth my time nor your time for me to go through the “plausibility” of each claim as to each defendant — although that’s exactly what the parties and the court will do when a motion to dismiss is filed. So this is more a general overview.
 
 
 
You may have noticed the DNC’s complaint references a lot of documents, with 107 endnotes. It is not typical to have “endnotes” in a Complaint. But a couple of those endnotes deserve special mention:

These aren’t minor details, nor are they matters that can be easily swept aside. In general, I think it is quite “plausible” to allege that Russia was involved in the hack on the DNC and that various members of the Trump Organization had contemporaneous contacts with agents of the Russian government.
 
 
 
But does the DNC “plausibly” link the Trump Organization’s contacts to the hacking itself? In many ways, the question is a political Rorschach test, and odds are good you have already reached your own conclusions.
 
 
 
I’ll come back to this lawsuit and many of the other issues it raises in a subsequent post.


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