From Jared Beck's "What Happened to Bernie Sanders", published by Hot Books:
It wasn't until June 15, 2016 (which happened to be the day after the last primary, in the District of Columbia) that I saw a legal pathway begin to take shape.
It wasn't until June 15, 2016 (which happened to be the day after the last primary, in the District of Columbia) that I saw a legal pathway begin to take shape.
By then, there had been widespread irregularities at the polls, including in Arizona, California, New York, and Puerto Rico, among other places.
The concept of this being a "rigged" election had already started to germinate in discussions among Sanders' supporters. But on this day in particular, a publically accessible WordPress blog was established under the name "Guccifer 2.0",
who took credit for having hacked the DNC's servers, and released a series of DNC documents. Among them was a memorandum addressed to the Democratic National Committee, and dated May 26, 2015 (the "May 26 Memo").
Upon reading through the May 26 Memo for the first time, it struck me as the kind of "hot document" I was trained to spot as a first-year lawyer, when I was tasked with reviewing the email files of a group of executives at a large software company being sued for securities fraud.
As part of that assignment, I had to "flag" any emails or documents which might be used to show that the company's leadership had knowledge that its accountants were improperly booking + inflating its publically reported revenues.
From a litigation perspective, such pieces of evidence are especially valuable given the well-known difficulty of proving the "scienter" element for claims sounding in fraud.
The May 26 Memo, however, constituted not just direct evidence of foreknowledge that the nominating process was being rigged for Hillary Clinton, but itself was a kind of blueprint for accomplishing the rigging.
...to summarize, even before Bernie Sanders had announced his candidacy, this single memorandum--which just happened to be one of the documents released by Guccifer 2.0 on June 15--explicitly laid out how the DNC would work directly with the mainstream media to advance Clinton
through the nomination process, via a tripartite strategy of what the author categorized as (1) Reporter Outreach ("stories with no fingerprints "); (2) Releases and Social Media; and (3) Bracketing Events.
Based on my professional experience as a business litigator, it seemed like the equivalent of a report to a corporation's leadership explaining how the company should go about falsifying its sales data.
Clear and direct evidence of fraud like the May 26 Memo may be rare, but is not sufficient to bring a legal claim in court. That requires a plaintiff in addition to a viable cause of action.
The plaintiff must have a sufficient stake in the matter to pursue a claim--what the law calls "standing". And there must be an actionable legal theory--it is not enough to identify something as "wrong" or "illegal", but the conduct in question must be capable of
being described in terms of a recognized category of legal claims.
Perhaps it was due to my own background in civil litigation, having first dealt with the possibility of "smoking gun" documents in the context of a massive securities fraud case,
Perhaps it was due to my own background in civil litigation, having first dealt with the possibility of "smoking gun" documents in the context of a massive securities fraud case,
but what flashed in my mind upon considering the questions of plaintiffs and legal theory was an analogy to the typical securities fraud class action.
In such cases, the plaintiffs are the company's shareholders--those who are injured by the company's misrepresentations because they have participated in the market for the company's stock, which they purchased at an inflated price.
But the DNC, while it is a corporation, doesn't sell stock. It functions in the political market.
And in the political market, as the Supreme Court has ensured through its holding in "Citizens United", the most privileged form of participation is the giving of money to political campaigns.
Analogy aside, from the vantage point of bringing a legally viable case based on the rigged primaries, it seemed that the best candidates to serve as plaintiffs were those who participated in the process as political donors.
Indeed, the law has always recognized the loss of money as one of the "classic" instances giving rise to legal standing. The analogy to securities fraud also suggested general causes of action to assert.
A typical securities fraud will plead claims based on material representations or omissions of the company. The plaintiffs shareholders can also plead claims for breach of fiduciary duty against the company's officers and directors.
I believe that the conduct of the DNC and its then Chair, Debbie Wasserman Schultz, can readily be described according to these legal claims.
By the time Guccifer 2.0 published the May 26 Memo, the DNC + Wasserman Schultz had already proclaimed their neutrality multiple times in the mainstream press.
Moreover, the Democratic Party's own Charter and Bylaws (which I was able to locate on the Internet without too much trouble) governed the DNC and explicitly required it (and its officers and staff)
to exercise and maintain "impartiality and evenhandedness" during the nominating process.
Suffice it to say, the mandate to act in a "fair and evenhanded manner" with respect to the primaries is rather explicit, and it had been acknowledged by DNC officers publically with respect to events in the 2016 primaries.
By claiming it was acting in a neutral manner, the DNC was both painting a false picture and hiding the truth of the matter: that the organization was determinedly working to advance Hillary Clinton to the nomination from before the get-go. The May 26 Memo confirmed that.
(End excerpt)
