Order in the Court!


I have been doing some pro bono lawyering myself in the last few days, and have now come up to the surface. It appears that a lot has been going on. I want to answer a few questions, to the best of my modest ability.

So, what was the first thing you noticed about the DNC suit against the Russkies and a bunch of the Trump entourage?

As is my wont on such occasions, I first turned to the signature page—page 54 in this instance—to see who signed the complaint. The answer: it was one Michael Eisenkraft of the Cohen Milllstein firm. They are a leading plaintiffs’ firm, known for big class action cases for alleged corporate misdeeds of various kinds. They are both ethical and highly effective. If you are in the defense bar and learn that Cohen Milstein has just sued your client’s ass, the conclusion to which you will leap is that your client’s ass has just been well and truly sued.

And proving “conspiracies”? They wrote the book on it?

Named defendants include the Trump campaign, Donald Trump, Jr., and five other Trump cronies. If Trump himself is having trouble finding a lawyers of stature to represent him, won’t his cronies have the devil’s own time finding good lawyers to represent them?

Yes, I would think that would be the case.

Why didn’t they name Trump as a defendant?

Probably, lots of reasons. One is that they avoid a big fight at the beginning of the case about when and how a sitting president can be sued.

What laws are the defendants charged with violating?

The central charge is that they all conspired to violate Sections 1831 and 1832 of Title 18 (the title that codifies federal criminal law). The crimes forbidden by these two sections are, respectively, economic espionage and theft of trade secrets. Although private parties cannot directly prosecute federal criminal violations, they may use these alleged violations as “predicate acts” in a civil case for damages under the Racketeering Influenced and Corrupt Organizations Act, commonly known as RICO.

What will happen next?

Once they secure lawyers to defend them—which may be no easy task—I assume that, in an effort to avoid “discovery,” defense counsel will file one or more motions to dismiss “for failure to state a claim for relief” under the Federal Rules of Civil Procedure.

I say “one or more” motions, because counsel for the various defendants may want to make rather different arguments.

Some of the Trump cronies may want to retain common counsel, and that may happen. But it will be tricky, because one or more of the cronies may want to settle and turn his coat on the others. And that, ladies and germs, creates what we call a conflict of interest.

Almost surely, the Roosian defendants will have a separate team from the Trump crony defendants. Doesn’t look good for the Trump crony defendants to say, “Conspiracy? What conspiracy? But, by the way, here we are in court represented by the same lawyers who work for the Russian intelligence agencies.”

Will the defendants succeed in getting the case dismissed before discovery?

Long story short: I very much doubt it. Legally, the case seems well founded. As to the facts, well, some of the talking heads have pointed out that you can’t prove facts in court by relying on news reports. But the complaint doesn’t try to “prove facts.” It tries to lay out a good factual basis for proceeding to the discovery phase of litigation.

And besides, the American bar and the American judiciary are well and truly pissed at Donald J. Trump. Even his guy Gorsuch ruled against him last week. Judges read the newspapers and watch the news. When calling the balls and strikes, they are not going to give Trump the benefit of the doubt.

What will happen when the defendants lose their motion to dismiss for failure to state a claim for relief?

Discovery: disclosure of relevant records, depositions, lots of opportunities to commit perjury. Lots of pressure on the weakest defendants to break ranks.

Turning to other matters, what about Rudi Giuliani’s joining Trump’s legal team?

Trump is in deep legal trouble. In desperation, he has hired competent white collar criminal defense counsel in New York and in Miami. But where you have legal troubles on many fronts, where the issues in one case relate to the issues in another case, and where there is a risk of multiple lawyers getting in one another’s way, what you badly need is a very clever spider sitting at the center of the web.

Rudy Guiliani is not that person. Rudy Giuliani is a blowhard—who himself will probably be a witness in one or more Trump-related cases.

Rudy and The Donald truly deserve one another. Aardvark welcomes Rudy to the circus.

Some have pointed out that Rudy hasn’t even worked in criminal law since 1989, and has probably lost his skills. Do you agree?

No, I don’t think that’s the issue. If he last rode a bicycle in 1989, he would probably still know how to ride a bicycle. The issue is his temperament and his judgment—which are, respectively, repellent and nonexistent.

And, finally, do you have anything new to say about the Michael Cohen raid and the legal circus going on in Manhattan federal court?

Yes, I do. Please check out The Judge in the Michael Cohen-Stormy Daniels Case Is Perfect: A porn star in the courtroom? The president’s secrets at stake? Why Kimba Wood isn’t even blinking.