The DNC lawsuit against the Trump campaign could be a great thing

The lawsuit the Democratic National Congress (DNC) recently filed against Donald Trump’s presidential campaign does several things.

Merely as it is, having been filed, without going forward a single step, it lays out the story of Trump and the Russians, step by known step, detail by known detail. Unless you are a Fox News fan, reading the tale as it’s told in the complaint would make you conclude that there was “collusion” – at the very least between the Trump campaign, various Trump cronies and hangers-on, and Russian intelligence. Also, that it was extensive and went on for a long time.

The DNC, through this complaint, even had the great pleasure of claiming, for the record, that the Trump campaign was a “racketeering enterprise”.

The list of defendants alone makes a point. It puts Russia, its armed forces, a GRU operative with a fake name, a spy novel Russian professor, WikiLeaks and Julian Assange on the same page with Donald J Trump for President, Inc. The list also includes the rest of Trump’s crew: Donald Jr, Jared Kushner, Paul Manafort, Richard Gates, Roger Stone, George Papadopoulos, plus up to 10 “John Does” – members of the conspiracy to be named later.

As legal documents go, the DNC complaint is a very easy read. An entertaining read. That can be presumed to be intentional. It’s there to convince the average person. It will serve as a reference for journalists and media people.

Cohen Milstein is the law firm representing the DNC. Their website says, “For over 45 years, we have fought corporate abuse, pursuing litigation on behalf of affected individuals, whistleblowers, public entities and other institutions in cases that have raised challenging, significant and often novel issues. Cohen Milstein specialises in holding large corporations accountable for their actions even though they often have significantly more resources than those damaged by their misconduct.” They’re plaintiff’s attorneys. They specialise in this sort of thing. They’re thought of as quite good at it.

There has been criticism of how this particular complaint was drawn up. One article by Al Jazeera said they failed to properly define “computer”. Another, by Stephen L Carter in Bloomberg, said it is not “properly pleaded” and it relies on “conclusory allegations”. It’s an odd term that translates, roughly, as “just because it walks like a duck and quacks, unless you have eliminated the possibility that it is a loon, a goose, a short-necked swan, or an escaped Disney employee in a Donald Duck suit, or can point to specific evidence that will prove its duckness, calling it a duck is a conclusory allegation”.

The “walks like a duck, talks like a duck,” standard used to be just fine at this stage of proceedings. Then a Supreme Court case, referred to as Twombly, said that just because a group of phone service companies failed to compete, the plaintiffs could not say that therefore, an illegal agreement must exist, and we want to force them to let us look for it.

That, however, is sort of a sub issue, that goes toward what it the real deciding rule, which is “plausibility”. Is it plausible that if the case goes forward, based on the items in the complaint, and they are found to be true, the plaintiffs would win. This is, obviously, a very subjective standard. Going back to the ducks, if the complaint said that in these circumstances, no other explanation could explain the facts – it was too small to be a Disney guy, too far south to be a loon, there are no short-necked swans – that would give it increased plausibility – and the court would well allow the plaintiffs to give the beast a DNA test. The plausibility test is, presumably, applied to the defense’s alternative explanations. If they are not plausible, that helps get the case over the hurdle.

Since Chief Justice John Roberts took office in 2005, the US Supreme Court’s decisions have favoured large corporations and powerful individuals, giving them power and shielding them from liability. Twombly fits this pattern. Twombly is usually paired with another case, called Iqbal. That falls into a pattern of limiting the rights of individuals, especially those lowest on the power scale. In free speech cases, for example, they’ve decided against a student, a prisoner, a whistleblower, and a group of peace advocates. 

There are certain areas in which the Justices of the Supreme Court use the law and the language of the law to get where they want to go, rather than following wherever the law takes them. This one is hard to predict. If dismissing it is seen as taking sides, against the Democratic National Committee, protecting this assortment of cronies, the corrupt, and Russian intelligence, and denying the public access to the truth, Roberts may well want it go forward so as to protect the Court’s reputation.    

Of course, long before any of this gets to the Supreme Court, it will go to a federal judge in New York. The name that popped out of the hat is John G Koeltl. He’s very highly regarded. Famous for working 12 hours a day, 6 or 7 days a week. He’s extremely smart and very demanding. By reputation, he’s someone who will take both this complaint and the forthcoming motions to dismiss it quite seriously. It is a set of extraordinary allegations against some of the highest people in the land, so the plausibility threshold is supposed to be set high – though in a subjective, holisitic way, that varies from judge to judge – but is it so high that we can say, off hand, that it’s not been reached?

If the lawsuit does go, it will go very slowly. Most of the defendants – and possibly Special Counsel Robert Mueller – and other prosecutors who may be moving against individuals named in the suit – will ask for stays of discovery. To wait on it, until other matters, like Mueller’s investigation, are completed.

So why is the DNC doing it, and why now?

One issue is money. They got money after Watergate; perhaps they’ll do it again. The DNC sued CREEP – the wonderful acronym for Nixon’s Committee to Re-Elect the President – over the Watergate break-in. They asked for $1m and got $750,000 when Nixon resigned in 1974, a substantial sum at the time.

Another is that it tells the story. Mueller might tell it better, but when will he tell it? Before the next elections? In the meantime, the DNC has this version out there now and, if they’re lucky, they can make stuff happen with it before the mid-term elections, this November.

Some folks at the DNC may also think that this is a way to backstop Mueller. If he’s fired, then they have this case. However, even if Mueller is fired, this lawsuit may not be necessary. If Mueller is fired, much of the material and many of the people in his office will do an instant migration to the office of Eric Schneiderman, New York State’s attorney general.

He may not be able to take over the counter-intelligence part of Mueller’s probe, but, unleashed from his obligation to wait on the federal investigation, he will go after most of the criminal matters, money laundering, fraud, the deals, ad false filings, so long as they happened in or touched down in New York.

There’s already a lot of back-channel communication between the two offices. Nothing would make Schneiderman happier than being free to go after Trump, his family, and his associates. State criminal courts are much more dangerous for Trump’s crew than the federal system. In New York, white collar criminals with long sentences don’t go to Club Feds with no fences and tennis courts; they go to Attica and Sing-Sing. The lawyers around Trump should be constantly reminding him of that, which could well be the real reason that the president hasn’t fired Mueller.

Whether this lawsuit, or the Special Counsel’s actions, or a set of criminal lawsuits from state attorney generals in New York, New Jersey, and elsewhere, do it, it would be a great thing to pull Donald J Trump for President, Inc., along with as many of the named – and some of the unnamed conspirators, most particularly Trump himself – into court, under oath, with all their phone records, emails, and papers exposed under subpoena, so as to strip away the relentless mendacity, the constant prevarications, and expose the naked truth. It may not be possible, but somehow, that should be the guiding goal of the justice system.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.