Editor’s Note: Shan Wu is a former federal prosecutor who also served as counsel to Attorney General Janet Reno. He practices law in Washington, DC, where his recent representations include defending Rick Gates in the Russian probe. The opinions expressed in this commentary are his own.
A lawsuit filed by the Democratic National Committee over interference in the 2016 election summons another Watergate-era specter: the DNC’s 1972 lawsuit filed against the Nixon campaign over the Watergate burglary. There are obvious similarities between the two. But the 1972 lawsuit ended well for the DNC, with a $750,000 settlement on the day Nixon resigned. It’s unlikely that the 2018 lawsuit will repeat the successes of 1972.
The facts are really different and hard to prove
While in both cases the DNC was suing the victorious Republican campaign over election interference, even as contemporaneous criminal investigations were being conducted by special counsels, the differences between the two cases dwarf any superficial similarities.
The simple facts of the Watergate lawsuit arose from a physical break-in conducted by burglars – acting at the behest of the Nixon campaign – who were caught red-handed at the scene of the crime. The 2018 lawsuit, on the other hand, arises from facts that are anything but simple, as evidenced by a list of defendants that includes: Russia; Wikileaks; Wikileaks founder Julian Assange; Russian intelligence agencies; Russian intelligence hackers, with names like “Guccifer 2.0;” Trump campaign officials like Paul Manafort and Rick Gates; Donald Trump’s relatives, and, of course, the Trump campaign.
So a major difference in 2018 is that a foreign nation (Russia) and its intelligence apparatus is being sued. This difference alone raises numerous legal obstacles, like foreign sovereign immunity, and will require litigation over the applicability of exceptions to the general rule that foreign countries cannot be sued in the United States. Moreover, the 2018 complaint alleges that all these defendants worked together in a conspiracy. The ability to prove this is even more complex and difficult, since all these different defendants will need to be tied together.
Proving the wrongdoing in the case is very hard. The crimes alleged in the complaint involve highly sophisticated computer hacks into the DNC servers that were investigated and pursued for months by IT specialists within the United States and by the FBI. Even with all these efforts and investigations, no criminal charges have been brought for the alleged DNC hacks.
And while recent charges were brought against Russians for interference in the elections, those charges did not involve hacking but the creation of false personas and use of social media accounts. Evidence gathered by the FBI and prosecutors may not be readily available in a civil lawsuit and may never be made public.
For example, law enforcement evidence gathered through surveillance and from confidential informants, as well as analysis by FBI or NSA cybercrimes investigators, will not be accessible to private litigants in a lawsuit. Without it, proof of hacking and the source of the hacking may be much harder to come by and, undoubtedly, will involve highly technical evidence that will be difficult to explain to a jury.
Lawsuits are slow and this one is likely to be delayed
Motions to dismiss will likely come up from the defendants in this case. For any lawsuit, progressing through motions to dismiss, which take place before the “discovery” process begins, takes time.
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And discovery, involving requests for data, documents and depositions, could take years in a case like this. Yet another obstacle will be the fact that nearly every individual defendant in the lawsuit may invoke the Fifth Amendment, since nearly all of them fall within the scope of a criminal investigation being conducted by special counsel Robert Mueller.
The lawsuit is highly likely to be stayed – or put on hold – by a judge. Stays frequently occur where a civil lawsuit for money may interfere with an ongoing criminal investigation – like the one being conducted by special counsel Mueller.
Litigation is a two-way street
Litigation compels both sides to reveal information, so it won’t just be the Republicans that have to disclose internal documents. It would be surprising if defendants in this case didn’t make highly comprehensive and intrusive document requests of the DNC. Some of these requests could result in newly embarrassing information and, at the very least, will refocus public attention on controversial internal disputes within the DNC, such as disparagement of the Bernie Sanders campaign. The DNC may eventually regret reopening such a Pandora’s box.
It’s unlikely that history will repeat itself and give the DNC another successful conclusion. The 2018 lawsuit doesn’t have the type of evidence, facts, and defendants the Watergate lawsuit did. The DNC should take that into consideration, or else it will be blindly trying to repeat history.