Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists

So, you maaaaaay have seen that Trump filed a lolsuit against his many and varied political nemeses.

McCabe, of course, is the *Republican* that *Trump* appointed to run the FBI after he fired James Comey

As an aside, the plural of "nemesis" should be "nemesi", not "nemeses". It isn't, and that makes me sad

Before we start digging into this procedural and substantive dumpster fire, here's the thing to remember: This is NOT a lawsuit. It's theater

This is designed to get eyeballs, to maintain Trump's "fighter" image, and to keep his nuttiest fanbase happy.

It's also worth noting that the former President of the United States is represented in this by Alina Habba

Habba is the type of small-town New Jersey attorney (Bedminster) who brags on her firm bio page about having taken post-law school certificate courses at Harvard but doesn't mention her law school (part time at a 4th tier place).

Note: None of that is objectively a problem

There are PLENTY of great small town lawyers (in Jersey and elsewhere). PLENTY of great lawyers who went to law school part time, PLENTY of great lawyers who went to law schools low in the rankings.

But HABBA obviously doesn't think that way, and that's telling

If you're bragging about your Harvard certificate courses and ashamed of your law school, you are one or both of: (1) overly impressed by credentials and (2) convinced your likely clients are rubes

Also, if you're the former POTUS, you *should* have your pick of lawyers anywhere in the country. So if you're choosing as your lead counsel a 10-year attorney at a 5-lawyer firm, there are only three possible reasons for that:

1) This is a top-tier attorney with a great reputation who practices at a small firm. Those folks exist <ahem>;
2) Nobody reputable will take your case; and/or
3) You're too stupid to realize this isn't the right lawyer for this

Alina Habba is ... very much not in that first category.

I mean, do you folks grasp exactly how terrible at the whole "law" thing you need to be to make other *Trump* attorneys embarrassed?

All of which is to say - this isn't a lawsuit. It's a cry for attention and a thing to mention at political rallies. It's likely going to be dismissed for a wide variety of reasons, and Trump won't mind that at all: not only will he avoid discovery (and needing to pay for it all)

But he'll be able to trot out the dismissal at political rallies as further "proof" of the conspiracy against him - and YOU, THE PEOPLE I AM TRYING TO REPRESENT - by mainstream institutions.

"SO MANY TERRIBLE THINGS, and they won't even let us sue her, they protect her ..."

With that out of the way, let's look at this 100 page monstrosity.

Given the size, I'm not going to do a live-read (I've taken a look in advance) and I'm not going to go through it page by page. Instead, we'll do the intro and jump from there to the causes of action

And then go backwards and see if there's anything specific in the run-up that supports particular claims.

First thing to talk about is this list of Defendants. The odds that they are all subject to personal jurisdiction in FL is ... low. And FL's long arm statute isn't going to help him, because, I mean, what in the world does he think, say, Peter Strzok was doing in FL

So the odds are good that this thing gets dismissed, as to any number of the Defendants, for lack of personal jurisdiction.

And OH MY GOD

I just scrolled down to the "Parties" section and oh no, Alina, baby, what are you doing??

What even is this? "A resident of the United States"? You couldn't figure out the address - or even state - for a chunk of these defendants? How are you planning to serve them with process?

I mean, we have tools that we use to search public records and identify addresses for the people we're suing. How many "Charles Halliday Dolan Jr."s do you think there are in the United States that figuring out where he lives was too difficult?

Also, the cherry on top of this incompetence sundae is the line in Debbie Wasserman-Schultz's paragraph about how her behavior had impacts in FL. That's all about trying to get long-arm jurisdiction over her, "Court, I can sue her in Florida even though she's not a FL Resident"

Except, um ... she's a FL resident.

Seems like a small thing, right? No substantive impact, since there's jurisdiction anyway. Won't impact the progress of the court even a tiny little bit.

But it's the workproduct of a lawyer who is just saying stuff with no real grasp of WHY

And you can't win a litigation that way. Can't.

Litigation is warfare - by which I mean that it's a complex battle that will generally require thoughtful tactics and strategy. Not always - sometimes it's like sending the US army up against Palau; the outcome is never in doubt

But most of the time, real litigation requires attention to detail and real questions of fact or law that you need skill and tactics to give your client a fighting chance. And you can't do that unless you understand why you're checking particular boxes or making particular moves

Of course, all attorneys can make mistakes in their filings - typos, arguments they know are stretches, etc. But in a high profile complaint like this, one submitted without time-pressure? This is a red flag

This is not an auspicious start. Among other things:

1) You've just conceded that Russia was a hostile foreign sovereignty and
2) It's March 2022. The run-up to 2016 was 5-6 years ago, which means you're going to have statute of limitations problems.

For example, RICO has a 4-year statute of limitations. Yes, there's a "discovery rule" - that statute runs from when you knew or should have known of the claim. Slight problem: Trump has been calling the Steele Dossier a DNC plot since 2016.

Is 6 more than 4? Yes? Your claim is time-barred. (cc @KathrynTewson)

Which, again, is what he wants. "They dismissed it because of the statute of limitations, because they know it's all true!"

Also, not a heart-warming beginning. A "conspiracy" to say bad things about a political opponent? That's unpossible!

Look, I need to take a second here to talk about how batshit insane the central conceit of this complaint is.

Their theory is that one fine campaign day, Hillary Clinton, Perkins Coie, and a bunch of DNC operatives sat talking together about a major problem: Donald Trump was just too clean!

They'd been doing oppo research on him, and nobody had a bad thing to say.

He'd never been involved in refusing to rent to Black people (he had).
Trump University wasn't a scam at all (it was)
It's not like he managed to go bankrupt running a casino (amazing)

He was notoriously faithful to his wife (we all know)
Never discussed abusing his position to perv on women (I get to just walk in where they're changing)
Etc. Etc.

They. Had. Nothing.

So they had to figure something out, and well, what else could they do? They agreed that since there wasn't anything true to attack Trump with, they'd just make something up.

Something sure to attract the attention of lots of American voters. Something they'd care about

You know, Russia.

I mean, it helped that Hillary Clinton would be the perfect messenger for that. If you were going to make up a story, it would have to be about Russia

And you DEFINITELY want that fake story to involve complex technological claims about email servers that most Americans can understand easily.

Bottom line: the idea that folks at the top of the Clinton campaign sat down and went "let's make up a hoax about Russian collusion" is lunacy ... and it's the heart of this complaint

This is what we in the law business call a "self-own"

Let's recap: Your allegation is a conspiracy intentionally designed to provide false information (which, basically, is a defamation case, but put that aside for now). You really want to allege this game of telephone?

Perkins retained Fusion who retained Orbis who got information from Danchenko who got it from Dolan ... you know what that allegation does? It gives literally everyone up the chain the obvious defense: "I was just reporting what I was told"

This is, of course, a basic Twiqbal problem. If you want to allege a conspiracy in Federal court, you don't get to just say "well, look at all this stuff I dislike that all these people were involved in" - you need facts that show the existence of an agreement to do bad shit

Twombly, the SCOTUS case that set the standard, upheld the dismissal of a price fixing conspiracy claim, because "just alleging that they all changed their prices" isn't enough to show an agreement between them to all change their prices. You need more.

Same here. "They all reported stuff I say has now been proven false" doesn't get you to "they all agreed to report it knowing it was false" - ESPECIALLY not when you're dumb enough to plead the chain of information that would have let them believe it

I mean, none of this is true. But also, even if it was, the statute of limitations on claims that you were hacked in 2015 or 2016 is loooooong gone

1) They continue to lie about the Mueller report;
2) They continue to plead "the facts that were reported up to the campaign were sufficiently believable" - I mean, if it took a two year investigation to "exonerate" you, how does "people talked about this" become "they lied"?

I'm skipping the next paragraph where they just lie about John Durham's investigation, no point spreading propaganda. Then we get to their big summary which is ... "this is a defamation case"??

Folks, there cannot conceivably be a harder claim to prove in the United States than a defamation claim made by a Presidential candidate and former President who was also famous before he ran for office.

Anyway, let's jump to the causes of action

Of COURSE they start with a RICO claim, because - to a certain class of Lolyer - it's always RICO. But they limit the enterprise to Hillary, her campaign, and Perkins Coie

Yes, yes, they name Sussmann and Elias, too - but Sussmann and Elias are Perkins partners who were acting in that capacity, and you can't be in a RICO enterprise with yourself.

So the basic claim is that Clinton, her campaign corporation, and Perkins jointly committed various predicate acts. As any lawyer who has handled RICO practice will tell you (and Alina Habba obviously hasn't) there are some REAL issues here

Most importantly, a "RICO Enterprise" (i.e. the association jointly committing predicate crimes) has to have "continuity" - it has to either be in existence and criming for a substantially long period of time (like 18 months or more) or be ongoing

Even counting from August 2015, the enterprise they're talking about would only have been doing stuff through early November 2016, when the election was held. That's not going to be long enough

I wonder what Alina has to say about continuohhhnoohcomeon

These eighthwits are seriously suggesting that Hillary Clinton, her campaign, and their lawyers are still working together.

I mean, she hasn't campaigned since 2016. She hasn't been represented by Perkins since then.

This is ...

Guys, "defeating Trump" isn't an "unlawful goal" - and you don't get to extend the statute of limitations on Defamation (2 years in FL, btw) by claiming that it's really RICO

Did ... did somebody have a stroke in the middle of drafting this complaint? Was this intended to make sense?

Also, is it just me or are they arguing "because they're still not Trump fans there's an ongoing conspiracy"?

But anyway, let's see what predicate acts they allege.

For those just joining us, "predicate acts" are the few specific types of criminal conduct that support a RICO claim - only an enterprise that conducts its affairs through multiple predicate acts can be liable for RICO

What. The. Hell?

So apparently they're alleging 2.5 types of predicate acts:

1) Theft of trade secrets
2) Obstruction of justice
3??) Scheme to defraud

Where in the world did "scheme to defraud" come from?

Generally speaking, most civil RICO claims involve some sort of scheme to defraud - some defendant got money from the plaintiff in a manner the plaintiff says was fraudulent, and they want to make it a RICO case for various reasons. So they allege wire fraud or mail fraud

But ... the way all of these fraud statutes work (predicate act or not) you need to have a Defendant who obtained money, or property - something of value - from the Plaintiff. There's none of that here, and they don't bother alleging mail or wire fraud

So why is "scheme to defraud" showing up in these allegations?

My theory: When it comes to Civil RICO Alina Habba's sole qualification is attending the Google School of Law, and she saw that phrase in the many exemplar complaints she reviewed before drafting this monstrosity

Remember when I said that the "Wasserman Schultz's conduct impacted FL" thing was a red flag? I hadn't yet seen this nonsense, but it's exactly the same problem: Alina is checking boxes without the first clue what the boxes are for.

Habba *also* apparently attended the Google School of Trade Secret Theft Law

What even is this?

OK, let's step back for a second. A trade secret is some data or process that (1) is used in a business; and (2) provides that business with a competitive advantage from not being known.

Trump is arguing that "who he communicates with" - as a general category - is a trade secret

But: (1) he hasn't identified any non-public information (i.e. which person or entity does he communicate with that was previously a secret), (2) hasn't explained how he uses that in business (politics doesn't count), and (3) hasn't explained what competitive advantage there is

Also, and maybe this is a little detail if you're a lolyer, not so much if you're even basically competent (let alone "incredibly competent") here's that trade secret statute

To violate 18 U.S.C. 1382, the supposed trade secret must have been converted to someone else's ECONOMIC benefit.

And yet there isn't a single allegation that anyone took that data and used it to some business benefit.

So ... this claim is toast.

But also, let's look back into the facts for what exactly they're alleging happened here

Here's the relevant section. Basically, the allegation is that these folks had access to non-public information and data-mined it. That's not theft.

Also, what in the world is going on with this sub-numbering thing? And why do the sub numbers in 123 start with "k"??

OK, how about "obstruction of justice"? Let's start with the first section they cite, 1503, because what the actual fuck, Alina?

In what universe is any of this applicable?

Which grand or petit jury or court case do you think any of these folks interacted with? How hard, exactly, did you hit your head in the many times you were apparently dropped as a child?

1512 is, if anything, worse.

Here's what 1512 covers (all of these include attempts to do the thing):

1) Killing a witness to prevent testimony
2) Threatening or using force on a witness to prevent or alter testimony, evidence, or communication with the police
3) Intimidation

4) Altering documentary evidence to make it unusable in an official proceeding
5) "otherwise obstructing an official proceeding"
6) Harassing people to prevent testimony

"Falsely reporting a crime" (even if that happened) isn't listed

And that's the entirety of this section of the complaint: You told the FBI/CIA about the Steele Dossier, made false accusations against us

That's not obstruction because, among other things, if there was no crime to investigate there's no justice to obstruct

Yeah, that's not a RICO injury

Fuck me

How does this keep getting dumber? How?

Why do you have more defendants in your RICO conspiracy count than your RICO count? Are you saying these folks conspired but didn't actually act? Why do you think "injury to political career" is a RICO injury? Who made you this way?

I have soooo many questions

Right, so you don't get to just say shit like this and that's it. What's the fact basis for the claim that, say, Nellie Ohr knew (1) that the Trump Organization's DNS data was a trade secret (2) that would be stolen (3) for someone's economic benefit?

Oh, it's not in there?

So, um, slight problem

This statute doesn't exist

"Injurious falsehood" is just another term for "business libel" - it's a Florida tort, not a federal law, and it has a two year statute of limitations. Why are you wasting our time?

They try to get around that by pleading that Hillary has continued offering mean opinions about Trump, which ... lol no

I'm beginning to think the reason Habba doesn't mention her law school isn't shame, it's that the school obtained an injunction to protect its reputation

There's also a count for "conspiracy to commit injurious falsehood" which holy shit, guys

And next we get malicious prosecution, which, AGAIN, those tiny little details.

See the problem?

"You made the FBI investigate me, but I was never prosecuted for the alleged crime" means you don't have a malicious prosecution suit.

Sorry.

And then, of course, there's a "conspiracy to commit malicious prosecution" count because Habba and Trump live in a world of peg-and-string murder boards

Next we have a CFAA claim, and again, sliiiiight statute of limitations problem.

Also, DAMAGE to the computer system or out-of-pocket loss is a required element to a CFAA claim. "You read my DNS data and I hired lawyers" isn't that

Then we have a standalone theft of trade secrets claim, because of course we do. And then a Stored Communications Act claim citing to the Injurious Falsehood statute, if I remember my US Code correctly (no, this is actually the SCA)

I'm sorry, what now?

Like ... there's no cause of action for "agency"

You make the substantive claim ("John Smith committed fraud") and allege that they did it through their agent ("using a firm he retained for that purpose, ...")

It's not a separate cause of action

And then we have a bunch of claims for "respondeat superior" liability which ... make no sense in this context.

Respondeat Superior is how you hold a company responsible for the in-scope-of-employment behavior of employees who can't bind the company.

John the greeter can't sign a contract for Walmart. But he CAN make Walmart liable for torts he commits while greeting

That's why you can sue UPS if their delivery driver crashes into your car.

Here, Trump's suing PRINCIPALS of the various corporate entities: Hillary Clinton/Clinton Campaign. Marc Elias/Perkins. Chris Steele/Orbis

That's not "respondeat superior" liability - it's just the corporation liable for its own corporate acts conducted by its officers/executives/partners

Or, as Eric puts it

https://twitter.com/FrozenEric/status/1507424911131820045

Anyway, that's the complaint, such as it is. There's about 80 pages of Trumpian grievance conspiracizing ahead of the causes of action, but I'm not wasting my time on that. This isn't a lawsuit, and he doesn't need my help on promoting conspiracy theories