The DNC’s lawsuit. My take.

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When I got up this morning to the news that the DNC was suing the Trump campaign and a bunch of Russians for oodles of money in damages, I was flummoxed. My initial thought was “Why in the hell are they doing something so stupid?”

My reasoning came down to two simple problems with the idea. First, this is not going to motivate the base. Most people who can tie their own shoes already hate Trump. They can bring up collusion and Russians to their hearts content, without filing what seems at first blush to be a sour grapes lawsuit. And second, this gives His Lowness a tailor made opportunity to rip the suit in interviews, speeches, and Twitter, taunting the Democrats for being sore losers, fundraising off of it, and trying to gin up his seemingly depressed base going into November. Why kick a sleeping canine?

But the more I thought about it, the more the idea grew on me. Not that it changed any of my earlier, above stated reasons, but for one simple reason. The damn thing just might work.

To allow the suit to go forward, the Democrats will have to prove that they have “standing,” That they’ve suffered an injury as a result of the misconduct they allege. This should be a no brainer. They are alleging that as a result of activity on the part of the Trump campaign, Julian Assange, a couple of other mental misfits, and a bunch of Russians, the American people were defrauded of a fair election, and Donald Trump cost them the Presidency. Sounds like a good reason to me.

But, if the suit is allowed to go forward, here is why I think it actually has at least a fair chance of succeeding. And the reason is the inherent difference in the way that criminal and civil lawsuits are decided.And it’s the same reason that with a sane congress, impeaching Trump would potentially be much easier than convicting him.

In a criminal trial, to gain a conviction, the prosecution must prove guilt “beyond a reasonable doubt.” This is a high bar, and intentionally so, to prevent as much as possible a wrongly accused man being sent to prison. But a civil case is decided on “a preponderance of the evidence.” That is a much lower bar to clear.

Here’s a perfect example. back in the day, due to a variety of circumstances, the state of California was unable to convict OJ Simpson of murdering Nicole Brown Simpson and Ronald Goldberg. And yet, all these years later, Ronald Goldman’s family gets a chunk of OJ Simpson’s NFL pension check every month…This is because they sued him for “wrongful death” in a civil case, and their attorneys proved it with a “preponderance of the evidence.”

So, if the court decides that the DNC has standing to proceed to trial, I think that the suit has at least a fair chance of succeeding. The biggest hurdle would be finding 12 jurors who have not already reached rock solid opinions one way or another on the issue. But don’t hold your breath. If the suit is allowed to proceed, the next step is “discovery,” the collection of documents and the taking of deposition testimony. Much of what the DNC lawyers are going to seek is under the purview of Robert Mueller’s criminal investigation. I think we can all expect that Mueller and the DOJ woild have the civil suit put on hold until they are done. But, if the suit is allowed to continue, it’s gonna be fun to see what happens.

 

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