April 25, 2018

Why the DNC’s Case Against Russia, Trump Campaign is Significant

Barbara McQuade Professor from Practice, University of Michigan Law School, and Former U.S. Attorney for the Eastern District of Michigan

The Democratic National Committee filed a federal complaint yesterday alleging that Russia, WikiLeaks and the Trump campaign conspired to damage the Democratic Party and help elect Donald Trump. This is a significant case, which seeks to vindicate the interests of the American people in open and uncorrupted elections and to redress damage to the Democratic National Committee and Democratic Party that undermined their ability to communicate their policy positions to the American electorate and their efforts to support the Democratic nominees for President and for other elected offices. But most importantly, the lawsuit lays out the case that the Trump campaign conspired with Russia to gain the presidency.

This complaint alleges a widespread conspiracy that Russia initiated by hacking into the DNC’s computers and stealing thousands of confidential materials. Armed with these stolen documents, the complaint alleges, Russia found eager and willing partners in WikiLeaks and Julian Assange, who along with Russia, publicly disseminated these materials with the purpose and effect of distracting the public’s attention from the positions that the DNC sought to advance and shifting focus away from negative publicity about the Trump campaign. According to the complaint, the Trump for President campaign and some of its most senior associates actively participated in the effort. They publicly and privately encouraged these efforts to disseminate confidential materials from the DNC to breed discord within the population. Assembled together, the facts documenting these efforts present evidence of a malicious campaign to fundamentally alter the course of the election of public officials in this country in 2016.

The complaint draws largely upon public information regarding conduct by Americans who have long been closely associated with Donald Trump. Some of these senior associates of the Trump campaign cultivated an intimate relationship with Vladimir Putin and the Russian government for years. The complaint details the instances in which the Russian government and its intelligence office hacked the DNC computers and stole reams of confidential material, disseminating it to the American public, in violation of a number of laws protecting electronically stored information and constituting conspiracy to engage in such unlawful activity. The complaint also depicts in detail the extensive relationships between the Russian government, the Trump campaign and WikiLeaks, and describes unlawful conduct that qualifies as a racketeering conspiracy.

As such, the case is the first to allege, in open court, what is at the heart of the Russia scandal: the Trump campaign and its associates conspired with Russia and WikiLeaks to aid Donald Trump’s election. As the DNC’s complaint puts it, there was a “conspiracy to disseminate stolen DNC data to aid Trump.”

This evidence, when presented together, satisfies the applicable legal standard set forth in the Supreme Court’s landmark decision in Bell Atlantic v. Twomblywhere the Court held that the touchstone for determining whether a complaint states a claim for purposes of a motion to dismiss is “plausibility.” In other words, a plaintiff must allege a plausible set of facts to survive. Another important principle set forth in Twombly is that the trial court must evaluate the complaint as a whole, not piece by piece. And, finally, the court must draw all reasonable inferences in favor of the plaintiff – in other words, at this stage of the proceedings, the plaintiff is entitled to the benefit of the doubt.

With all of that in mind, has the DNC plausibly alleged that the defendants engaged in a conspiracy to disseminate stolen DNC documents to aid Trump’s campaign during the 2016 election. The facts cited in the DNC complaint are based on nearly all public information. Nevertheless, taken together, the facts paint a damning picture.

As alleged in the complaint, Trump’s associates had a decades long history with Russians, much of it centered around questionable, possibly criminal, activity. The defendants shared a common purpose: to bolster Trump and denigrate the Democratic nominee. In July 2015, Trump announced his candidacy for President; weeks later the Russians began hacking the DNC. In April 2016, the Russians began to steal the DNC documents; days later a Russian agent told a Trump campaign official that Russia had stolen Hillary Clinton documents. (The Trump campaign official, George Papadopoulos, later bragged about the stolen documents). In June 2016, Russians offered to help the Trump campaign with stolen Clinton documents, and in response, Donald Trump, Jr. accepted the offer, saying, “I love it.” Days later, the Russians began disseminating stolen DNC email messages. In July 2016, the Trump campaign removed anti-Russian language from the GOP platform; days later Wikileaks began to publish thousands of stolen DNC emails. And, on top of this sequence of events were secret meetings, inexplicable predictions of future disseminations and then repeated efforts by the defendants to cover up their contact with Russians.

Based on these facts – taken together – it is plausible that the defendants conspired to disseminate stolen DNC documents to aid Trump’s candidacy. The known conduct of the defendants and the illegal dissemination of stolen documents establishes an unmistakable pattern. A conspiracy also explains the curious fact that defendants repeatedly acted against their own interests – for example, taking the risk of establishing secret channels of communications with a hostile foreign power. The DNC’s conspiracy allegation is also a plausible explanation for defendants’ relentless effort to cover up their contacts – even when that meant lying to the FBI.

Under the law, a conspiracy is simply an illegal agreement. But a conspiracy does not require a formal, written agreement. In fact, conspirators almost never enter into any such written agreement. All that is required is an implicit agreement, or simply an understanding. As some courts put it, there need only be a “meeting of the minds.”

Here, when taking the facts as a whole, the conclusion is inescapable: the Trump campaign and its associates conspired with a hostile foreign power to seize the presidency of the United States.