by Michael Dorf
Last week the Democratic National Committee (DNC) filed a lawsuit in federal district court in the Southern District of New York against the Russian government, two arms of the Russian government, three foreign nationals (Azerbaijani-Russian billionaire Aras Agalarov, his son, pop singer Emin Agalarov, and Australian-born WikiLeaks founder Julian Assange), Wikileaks, the 2016 Trump for President campaign, six individuals who were part of or assisted the Trump campaign and/or Trump administration (Donald Trump, Jr., Paul Manafort, Roger Stone, Jared Kushner, George Papadopoulos, and Richard Gates, but not President Trump), and ten unnamed “John Doe” defendants. The lawsuit includes seven counts of civil liability under various federal statutes, one count under a Washington, D.C. statute, three counts under Virginia common law, and one count under a Virginia statute.
The lawsuit raises a host of interesting legal questions, including whether the Russian government and its agencies have foreign sovereign immunity. The suit has also already generated political controversy. Republicans--especially the Tweeter in Chief--argue that the lawsuit is just sour grapes, an attempt to turn an electoral loss into a legal case. Some critics on the left echo that complaint, arguing that by focusing on Russian meddling in the 2016 election, the DNC is failing to re-examine its own electoral priorities and to retool in a way that will appeal to a broader swath of the electorate. As noted in the WaPo story just linked, the DNC rejects these charges, arguing that the lawsuit is about compensation and preventing further efforts to breach privacy.
Yet even assuming the best motivation by DNC chair Tom Perez, the timing is difficult. Perez said: “A year ago, people were saying: File a lawsuit. I didn’t do it then, because I believe in doing your homework." Well, that makes sense if you're bringing a medical malpractice suit against a doctor and hospital. Before you file, you want to check the records carefully, line up your potential expert witnesses, and conduct all of the pre-filing investigation you can. A delay of a few months or even a year could well be justified. But the timing should look different if you are filing a politically charged lawsuit. Had Perez and the DNC filed a year ago, it would have been harder for Trump and his apologists to complain that the Democrats were taking way too long to move on. Sure, they would have said that anyway. And sure, such complaints would have been (and in our actual reality are) the height of hypocrisy, given that Trump continues to boast about his ginormous electoral victory (in which he lost the popular vote by the largest margin of any Electoral College winner in history). Still, timing matters.
The timing point is hardly limited to the DNC lawsuit. More generally, it points to a broader problem of the disconnect between what we might call "political time" and "litigation time."
Consider the Mueller investigation. Robert Mueller was appointed special counsel nearly a year ago. Last week, when it was announced that Rudy Giuliani had joined Trump's legal team, both he and Trump expressed hope that, leveraging his existing relationship with Mueller, Giuliani could resolve the matter quickly. That position is preposterous.
The Mueller investigation is sprawling. Even if, as Trump keeps claiming on the basis of completely unrelated news, he did not have any knowledge of or participate in any joint efforts by Russia and members of his campaign to influence the election, there are already pending criminal cases that would likely take months if not years to resolve. For example, Paul Manafort's trial in Virginia is scheduled to begin in July. It could be delayed. It could take months. And then there will be appeals. Giuliani represents Trump, not Manafort. Nothing Giuliani could negotiate with Mueller could quickly wrap up the case against Manafort.
To be sure, Trump could pardon Manafort, but he can do that without Giuliani's intervention. Assuming Trump does not grossly abuse his power by issuing pardons to everyone under investigation by Mueller, the investigation will continue for months if not years.
That is barely acceptable in an ordinary criminal investigation, in which investigators need to respect suspects' rights, move deliberately up the organizational chart, and assemble evidence. But the political timeframe makes the delay worse.
We are already in the midst of the 2018 midterm election cycle. Whether and the extent to which Trump and his staff colluded with a hostile foreign power in the last presidential election is important information for voters. Any dramatic findings from Mueller that drop before the midterms will be deemed politically timed; by contrast, if the punchline comes after the midterms, then that will be both too late to make a difference and, given the length of presidential campaigns, already political in that regard. And on top of all that, the longer the Mueller investigation drags on, the easier it is for Trump and his cronies to complain that it, like the DNC lawsuit, is a product of sour grapes.
The disconnect between political time and litigation time can be felt in completely different contexts as well. Some years before the Supreme Court found a constitutional right to same-sex marriage in 2015, I had a conversation with a lawyer for one of the leading LGBT rights organizations about when to bring a key state-level lawsuit. We were concerned that the lawsuit might succeed in gaining marriage equality in court only to spark a backlash at the polls. She noted astutely that there was no way to avoid the timing problem, because there are enough key events in a lawsuit--filing the claim, surviving a summary judgment motion, winning a trial, winning on appeal, etc.--that at least one and likely several will occur in sufficient temporal proximity to an election to be used as a means by which the opponents of marriage equality would mobilize their voters. Litigation time would spread the case into political time.
To some extent, the "political time" problem is just an extension of the more general problem that litigation in a complicated contested case takes years. The slow pace of complex civil litigation generally harms parties by delaying the winning parties' access to justice and by adding to the cost for all parties. That's a problem in all cases. But plaintiffs (and occasionally defendants) have additional problems in politically charged cases: The delay that litigation entails can mean that by the time relief comes, a great deal of irreparable damage is done (as is possible in the DNC lawsuit and the Mueller investigation) and/or that key events in the litigation insert themselves awkwardly into the electoral calendar.
Can anything be done about these problems? Streamlining and speeding up litigation generally would do the trick, but that's a giant problem--and one person's streamlining is another's steamrolling. For now, it seems that the best we can hope is that everyone pay attention to avoiding avoidable errors. That means giant ones, like James Comey's horrible judgments about timing and other matters in 2016, and also modest ones, like Tom Perez's failure to understand the difference between ordinary litigation and litigation on behalf of the DNC.