Thread by @ai_jared

CAROL WILDING, ET AL., Plaintiffs v. DNC SERVICES CORP, d/b/a, DEMOCRATIC NATIONAL COMMITTEE, ET AL., Defendants. April 25, 2017

Excerpt from Transcript of Motion Hearing before the Honorable William J. Zloch, U.S. District Judge

THE COURT: What does the plaintiff say on the operational aspect of the DNC?

MR. BECK: Well, your Honor, I'm shocked to hear that we can't define what it means to be evenhanded + impartial. If that were the case, we couldn't have courts. I mean, that's what courts do every day,

is decide disputes in an evenhanded and impartial manner. So, to me, it's not a difficult question at all (as to) what it means to be even-handed and impartial. It doesn't mean having to wade into a political dispute about how the party conducts its own affairs,

because that's what the party represented in its charter, that's what the party represented over and over again in the media, that's frankly what I think is at the bedrock of what it means to live in a democratic society.

I think that's why the Democratic National Committee has it in its charter, because if you don't have the organization that is responsible for organizing in this very large sense the nominating process for president, which entails multiple elections in every state of the union,

if you're not evenhanded and impartial, then you don't have a democratic process. I think it's that simple. And I think what it means is the Democratic National Committee should not be putting any resources into one candidate at the expense of another.

I think that it means that it should not be assisting the media in crafting narratives that hurt one candidate at the expense of another. I think it means that when there's a dispute that comes up in one of the primaries, say, in Nevada, where there are allegations of misbehavior

during a primary or an event, I think it means that the DNC should not be picking sides and adjudicating those disputes in a fair and even-handed manner.

I think this is not a difficult thing at all to decide. I think the language speaks for itself in many ways. And so, again--and I'll just say it again--they keep citing cases where plaintiffs have brought grievances that are political in nature.

And now they're starting to use the this defense of justiciability, which interestingly, I don't think that particular defense, as phrased, appeared anywhere in their papers. I may be missing something, but I don't see how this is a political question.

We're not asking this Court to infringe on the province of another branch of government or to get involved in the conduct of Congress or the conduct of the Office of President. We're asking the Court to determine whether representations and omissions were false and misleading,

and whether money was paid on the basis of those representations, whether folks were injured in a financial sense as a result of those representations, and whether duties to the class members were breached, including fiduciary duties.

I think those -- courts do these things all the time. There's nothing inherently political about those determinations.

And I -- again, I think this gets back to this theme that they keep putting in front of the Court that there's some type of immunity that comes out of the First Amendment, because we're talking about politics and sort of anything goes as far as political speech is concerned.

I think that's kind of what their theory boils down to. And I would just emphasize that, again, we are talking about the payment of money.

And once money is involved, once people are paying money based on false understandings, clearly, there is standing, and I don't see the political question or a justiciability issue.

COURT: All right. Thank you, Counsel.

MR. BECK: Okay. Thank you.

THE COURT: All right. Let me ask the defense -- we're going to go into the issue of standing now at this point. Let me ask counsel. If a person is fraudulently induced to donate to a charitable organization, does he have standing to sue the person who induced the donation?

MR. SPIVA: I think, your Honor, if the circumstance were such that the organization promised that it was going to abide by some general principle, and donee -- or donor, rather, ultimately sued, because they said, Well, we don't think you're living up to that general

principle, we don't think you're, you know, serving kids adequately, we think your program is -- the way you're running your program is not adequate, you know, you're not doing it well enough, that that - that they would not have standing in that circumstance.

I think that if somebody -- a charitable organization were to solicit funds and say, Hey, we're gonna spend this money on after-school programs for kids, and the executive director actually put the money in their pocket and went down the street and bought a Mercedes-Benz,

I think in that circumstance, they would have standing. I think that this circumstance is even one step further towards the no standing side of that, because here we're talking about a political party and political principles and debate.

And that's an area where there's a wealth of doctrine and case law about how that--just simply giving money does not give one standing to direct how the party conducts its affairs, or to complain about the outcomes, or whether or not the party is abiding by it own internal rules.

And I should say, your Honor, I just want to be clear, because I know it may sometimes sound like I am somehow suggesting that I think the party did not -- you know, the party's position is that it has not violated in the least this provision of its charter.

THE COURT: I understand.

MR. SPIVA: So I just want to get that out there. But to even determine -- to make that determination would require the Court to wade into this political thicket. And -- you know, which would invade its First Amendment interests,

and also, I think, would raise issues -- standing issues along all three prongs of the standing test. Causation. Did -- the thrust of plaintiffs' allegations appears to be that some -- that one of the subclasses gave money to the Sanders campaign, because they thought that party

was living up to this idea. They don't actually allege that any particular plaintiff, by the way, knew about this charter commitment or that they relied upon it in giving money to Sanders.

But even if they had, showing the causation there, I think, is not something that can be done. And it's something that would require, again, The Court to wade into the political thicket. Similarly, they purport to speak on behalf of the DNC Donor Class.

Most, most of the class that they purport to speak on behalf of, you know, disagrees with them. And so, the Court would have to wade into that establish causation. And it really can't -- it can't be done.

The other part of their injury appears to be that Mr. Sanders -- Senator Sanders would have done better had the party supposedly been more evenhanded than it was.

Well, that -- there's all kinds of alternative factors for why Secretary Clinton actually got more votes in the end and won. And as everybody knows, Senator Sanders endorsed her and campaigned for her. And so, there's a causation problem.

And there are other issues that we discuss in our brief -- I won't repeat the -- with causation. There is certainly a redressability problem, which I think I've already covered in my previous remarks. I won't go over that, again unless your Honor has other questions.

And then in terms of concrete injury, which was really the first prong, that again, is problematic, because -- and this goes back to your Honor's question -- there is no right to -- just by virtue of making a donation, to enforce the partys' internal rules.

And there's no right to not have your candidate disadvantaged or have another candidate advantaged. There's no contractual obligation there.

Nor is there a fiduciary obligation, although I know we're gonna get to that later. But there's -- it's not a situation where a promise has been made that is an enforceable promise. And I think that goes both to the concrete injury prong and the redressability prong.

THE COURT: And then one question on the issue of standing for the defense. Is there a difference between a campaign promise made by a political candidate and a promise that pertains to the integrity of the primary process itself? In other words, President George H.W. Bush's --

MR. SPIVA: "Read my lips."

THE COURT: -- promise -- "read my lips, no new taxes," and then he raised taxes. Well, he could not be sued for raising taxes. But with respect to the DNC charter, Article V, Section 4, is there a difference between the two?

MR. SPIVA: Not one -- there's obviously a difference in degree. I think your Honor -- I'm not gonna -- I don't want to overreach and say that there's no difference.

But I don't think there's a difference that's material in terms of how the Court should decide the question before it in terms of standing,

in that this, again, goes to how the party runs itself, how it decides who it's going to associate with, how it decides later how it's going to choose its standard bearer ultimately.

In case after case, from O'Brien, to Wymbs, to Wisconsin v. LaFollette, Cousins v. Wigoda, the Supreme Court and other courts have affirmed the party's right to make that determination.

Those are the internal issues that the party gets to decide basically without interference from the courts.

And the fact that money has -- I know that my distinguished colleague on the other side as several times said that, Well, money makes this different, and it really doesn't in this context. You know, again, if you had a charity where somebody said, Hey, I'm gonna pocket the money

and use it for a specific purpose, X, and they pocketed it and stole the money, of course that's different.

But here, where you have a party that's saying, We're gonna, you know, choose our standard bearer, and we're gonna follow these general rules of the road, which we are voluntarily deciding, we could have --

and we could have voluntarily decided that, Look, we're gonna go into back rooms like they used to and smoke cigars and pick the candidate that way. That's not the way it was done. But they could have.

And that would have also been their right, and it would drag the Court well into party politics, internal party politics to answer those questions.

THE COURT: All right. Thank you, Counsel.

MR. SPIVA: Thank you, your Honor.

THE COURT: Let me have the plaintiff respond to those two questions of the defense. And then I have questions for the plaintiff regarding standing, and I'll let the defense respond to those --

MR. BECK: Okay.

THE COURT: -- to those answers.

MR. BECK: Uhm --

THE COURT: First, your response to their answers.

MR. BECK: Yes. And I'll take the last part first, which was the question your Honor had posed,

is there -- and I'm paraphrasing it, but is there a material difference between a campaign promise, such as "read my lips, no new taxes," and representations that are made in the DNC's own charter?

And, quite frankly, if what the defendant -- or what the DNC has just said is true -- and I really hope it's not true, but if what he said is true, then I think it's a really sad day for democracy in this country.

Because what the DNC has now stated in a court of law is that it believes that there is no enforceable obligation to run the primary elections of this country's democracy in a fair and impartial manner.

And it that's the case -- and I think counsel just said it himself -- then really, you know, the sky's the limit in terms of what the DNC and any party, for that matter, can do.

THE COURT: Can go around doing.

(From #DNCFraudLawsuit)