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The DNC Jumps the Shark With New Lawsuit

The DNC Jumps the Shark With New Lawsuit
(Marcin Rutkowski/Dreamstime.com)

Monday, 23 April 2018 01:06 PM Current | Bio | Archive

There is an expression used in popular culture to suggest that things have gone too far, and passed the point of believability. It’s called “jumping the shark,” and refers to an episode of the 1970’s comedy “Happy Days” where the teenage hero, “Fonzie,” miraculously, and adeptly, on water skis, and wearing his trademark leather jacket, bounds over the man-eating sea monster, and avoids harm. Something “jumps the shark” in a vain, desperate attempt to reverse fortune, in an utterly unbelievable manner.

This week our politics jumped the shark. Several news items either strained credulity, appeared to display practices far beyond what could reasonably be expected, or simply ran completely counter to accepted conventional wisdom.

Among these were the referral by the Justice Department’s office of Inspector General for possible prosecution of the criminal case involving former Deputy Director of the FBI, Andrew McCabe, for “lacking candor,” when he was questioned by federal agents; the acknowledgement by former Director of the FBI, James Comey, that he deliberately withheld information from the president regarding the Clinton campaign source of the infamous and salacious “dossier” seeking to smear Donald Trump; the revelation that Deputy Attorney General Rod Rosenstein had told President Trump that he was not a “target” in either Special Counsel Robert Mueller’s investigation of purported political collusion with Russian agents in the 2016 presidential election or the New York federal prosecutors’ investigation of Mr. Trump’s former lawyer, Michael Cohen; and the report that Hillary Clinton believes that she lost the election because “they were never going to let me become president.”

Each of these occurrences could have dominated the news cycle in quieter times for many days, but most outrageous of all was the filing of a lawsuit by the Democratic National Committee (DNC) against the Russian Federation, Officials of the Russian Army, the Trump Campaign, and several individuals, including Russian Oligarchs, Donald Trump, Jr., Mr. Trump’s son-in-law, Jared Kushner, and some other Trump advisors and campaign associates (although mysteriously not the president himself), demanding millions of dollars in damages for malicious theft of information, and the purported violation of several federal and state statutes.

It was horrible enough when, after the 2000 election, time-consuming and ultimately fruitless litigation tied up the results for weeks, risking the paralysis of our national government, until the Supreme Court finally put a stop to it. Here, however, is a naked attempt to undermine and destroy confidence in the result of the 2016 victory of Mr. Trump, continuing an effort that we now know was hatched by apparatchiks in the Obama Justice Department and FBI, involving the Clinton campaign and, quite possibly, President Obama himself. That effort included the failure to take seriously Mrs. Clinton’s use of an unsecured personal server on which she kept confidential federal information, the torpedoing of a prosecution against her for violations of federal law, the failure to take action against Mrs. Clinton, her husband and others participating in purported “pay to play” activities on the part of the Clinton Foundation, and the concocted plot of “Russian Collusion,” to justify the appointment of Special Prosecutor Mueller.

While an objective observer would discern collusion and criminal misconduct on the part of Mrs. Clinton and her allies, with spectacular chutzpah, the DNC now claims that Russians, the Trump Campaign, and assorted minions were engaged in a conspiracy involving organized criminal activities to steal information from the DNC, by hacking into its servers. In a sensible country, this lawsuit would be laughed out of court, but, unfortunately, jurisprudence in America is now anything but sane.

Since the 1950’s progressive judges have been expanding judicial authority, and the philosophy of “legal realism” taught in our law schools has permitted too many judges and lawyers to make it up as they went along. The distinction between judging and legislating is now so attenuated that our framers must be spinning in their graves. As recent frustrations of the Trump administration in the courts have shown, it is now impossible to predict just what will be regarded as law and what will not, and when the Constitutional allocation of powers will be ignored.

Still, it is ridiculous to suggest that the now normal practices of opposition research and revelation of missteps and misconduct by one’s political enemies are actually evidence of racketeering operations (and it is far from certain that the hacking of the DNC’s computers was not an inside job). Thus, it’s possible that the trial or appellate court will dismiss the DNC’s suit as groundless and frivolous, but it’s also possible that this is the beginning of an unhealthy and wasteful process of relitigating unfavorable political judgements by the American people.

In any event, it is highly unlikely that the Russian defendants will ever appear in Court, and it is clear that the Sovereign Immunity of the Russian Federation makes recovery against it or its officials impossible. The DNC’s lawsuit ought to be seen for what it is, a ploy for increased fund-raising from rabid anti-Trump partisans, and a shameless and deleterious misuse of the law to keep a spurious and corrosive narrative before the public.

If the lawsuit is not dismissed, the difficulties of the DNC making its case will be profound, as the collusion which represents the essence of the DNC’s case has been virtually completely discredited by the revelations of misconduct by Comey, McCabe, Strzok, Page, Brennan, et. al. One also wonders whether the DNC has thought through the risks that the discovery process will impose as the defendants seek information to reveal further misdeeds by those running the DNC and the Clinton campaign.

Perhaps Mrs. Clinton is correct that “they were never going to let me be president,” if “they” were the normal, average law-abiding American voters who concluded that she appeared to be a corrupt and unacceptable candidate for our highest office. Despite Mrs. Clinton’s and the DNC’s insistence to the contrary, there has been no evidence of any effective conspiracy against her other than the damage that she and her own party inflicted upon the process and themselves. “Happy Days” never recovered from jumping the shark, and the DNC may have just accelerated its own demise.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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There is an expression used in popular culture to suggest that things have gone too far, and passed the point of believability.
dnc, trump, lawsuit
Monday, 23 April 2018 01:06 PM
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