Protesters at the Democratic National Convention in Philadelphia on July 26, 2016. (Photo by Albin Lohr-Jones/Pacific Press/LightRocket via Getty Images)

In Its Defense Against Fraud Suit From Bernie Supporters, the DNC Just Dug Itself Into an Epic Hole

If the party wants to favor a candidate, that’s its own business, argues DNC lawyer.

BY Branko Marcetic

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“We could have voluntarily decided that, look, we’re gonna go into the back rooms like they used to and smoke cigars and pick the candidate that way,” the DNC lawyer told the court.

The Democratic National Committee just can’t leave the ghost of the 2016 Democratic primary contest behind. Since Hillary Clinton’s loss in the general election, both her and Bernie Sanders’ supporters have been relitigating the campaign, with disgruntled Sanders backers alleging that the DNC put its thumb on the scales to ensure Clinton came out of the contest as the nominee.

All the while, the primary fight has been quietly—and quite literally—reargued in a Florida courtroom, with the DNC defending itself against a class action fraud suit brought by two unhappy Sanders backers, husband-and-wife attorneys Jared and Elizabeth Beck.

The crux of the case is this: Article V, section 4 of the DNC charter states that its chairperson “shall exercise impartiality and evenhandedness as between the Presidential candidates and campaigns.” Yet emails and other documents released to the public by WikiLeaks show that the DNC was anything but evenhanded and impartial, working to undermine Sanders’ campaign and ensure Clinton won.

The Becks cited several now well-known examples from the DNC hacks to illustrate their point. The original complaint pointed to an internal memo dated May 26, 2015 that treated Clinton as the presumptive nominee, outlining tactics “to muddy the waters around ethics, transparency and campaign finance attacks on HRC.” (Sanders had already thrown his hat in the ring by this point, while the other candidates were yet to announce).

During the most recent hearing, Jared Beck, representing the donors suing the DNC, pointed to several more examples, including then-DNC Vice Chair and CNN contributor Donna Brazile giving the CNN debate topics to the Clinton campaign in advance, and the DNC’s strategizing over how to plan the debate schedule to most benefit Clinton: Limit their number and keep them out of the most significant part of the primary season. (Beck could also have pointed to an email from the DNC’s CFO suggesting they use Sanders’ vaguely defined religious beliefs against him.)

Given all this, the suit argues, anyone who donated money to the DNC under the expectation that it would treat the candidates fairly had been defrauded.

The suit was originally filed back in June 2016. The DNC has tried several times since, unsuccessfully, to have the lawsuit dismissed. If the transcript of the most recent hearing, held on April 25, is anything to go by, the DNC has good reason to want the lawsuit to disappear quietly: Its legal defense makes it look terrible.

At the heart of the DNC’s defense, articulated by attorney Bruce Spiva, is the idea that, being a private organization, the Democratic Party is allowed to make whatever rules it wants. The impartiality clause, said Spiva, is “a discretionary rule that [the DNC] didn’t need to adopt to begin with.” Its rules and alleged rule-breaking are a private matter and for a court to interfere would not only draw it into “political squabbles,” but violate the DNC’s First Amendment rights.

Legally, the DNC is probably on sound footing. As Robert Wigton, professor of political science at Eckerd College has written, the courts “have never provided a coherent framework to distinguish when parties are to be treated as ‘public’ entities and when they are to be deemed ‘private’ ones.” And if a court asserted the right to regulate a party’s rules, it would potentially cause a firestorm among both parties. So the court has every reason to decide not to hear the case.

But while such arguments might be effective in a court of law, they’re also a nightmare in terms of public relations for the embattled Democrats, who only a little over two months ago faced public scorn for working to block Keith Ellison—the Sanders-backed popular choice—from becoming DNC chair. The DNC’s lawyer telling a judge that it has a right to tip the scales in favor of a certain candidate, even if that breaks its own rules, likely won’t improve the DNC’s image.

Keeping with this argument, Spiva repeatedly argued throughout the hearing that the DNC has a right to be biased if it so chooses (even though, he assured the court, it totally wasn’t).

“The party could have favored a candidate. I’ll put it that way,” Spiva told the court at one point in the hearing. “Even if it were true, that’s the business of the party, and it’s not justiciable.”

Spiva went on to stress that the party’s rules are simply ones they “voluntarily” adopted.

In other words, the party’s rule around impartiality is one that it could just as quickly choose to jettison. And even if it didn’t, and it decided to break the rule and favor one candidate, it could do so because it’s “the business of the party” and out of the courts’ hands. Not that this is what happened, of course. Not the Democrats. Never.

One moment in particular that would have made Democratic higher-ups queasy was Spiva’s decision to allude to choosing candidates in smoke-filled back rooms. This was a particularly ill-advised choice after a primary season where the Democrats were accused of doing just that, with the superdelegate system (originally designed to tilt the pendulum back to party officials in the nominating process) criticized as unfairly benefiting Clinton and taking the choice away from the grass roots.

“We could have voluntarily decided that, look, we’re gonna go into the back rooms like they used to and smoke cigars and pick the candidate that way,” he told the court. “And that would have also been their right.”

Live video footage is available of the Democrats’ reaction to this argument.

This wasn’t the end of it. The judge questioned whether  there was “a difference between a campaign promise made by a political candidate and a promise that pertains to the integrity of the primary process itself,” using the example of George H. W. Bush’s famously broken pledge of “no new taxes.” Because a candidate can’t be sued for not living up to her promises, this question was crucial to deciding if the donors had standing to sue the DNC.

“Not one,” Spiva replied.

Jared Beck seized on this in his response.

“What essentially 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,” he said.

Perhaps realizing his argument had done the Democrats no favors, Spiva later stressed to the court that the party doesn’t “choose its nominees in a smoke-filled room … and doesn’t plan to do that.”

Spiva later again used the analogy of lying in politics to make the point that just because an individual donates money to a someone doesn’t mean they have standing to take them to court if they fail to live up to promises.

“Someone said, we’re gonna build a wall, and Mexico is gonna pay for it during the primaries,” he said. “If their theory holds … that means that anybody could sue President Trump or the Trump campaign for statements that were made that—where the promise was not kept in the context of the primary.”

Just as it’s perfectly legal for politicians to mislead their constituents in the pursuit of power, Spiva essentially argued, so it’s perfectly legal for the DNC to lie to Democratic voters about the impartiality of the primary process to get their donations.

If that doesn’t sound bad enough, it’s almost laughable that Spiva used two of the most notorious broken promises in modern political history to illustrate his point—Bush’s “no more taxes pledge” and Trump’s impossible wall. Not a good look for the party of the people.

There were other head-scratching arguments. Early on in the hearing, Spiva claimed that the concept of fairness couldn’t be accurately defined.

“Even to define what constitutes evenhandedness and impartiality really would already drag the Court well into a political question and a question of how the party runs its own affairs,” he said.

As Beck pointed out in his reply, the concept of “evenhandedness and impartiality” was something a judge dealt with each day of work.

To sum up, in the space of the hearing, the DNC claimed that: The words “evenhandedness and impartiality” are subjective and hard to define; commitment to these principles is something the DNC is simply volunteering to do; the DNC has every right to tip the scales for a candidate or simply choose them in a smoke-filled room; and that any failure to abide by its own charter is no different from a politician breaking a major campaign promise.

These exchanges showcase the problem facing the DNC. To succeed in winning the case, or even have it dismissed, it also has to publicly make arguments that reflect incredibly poorly on it. Every effective legal defense that Spiva puts forward produces quotes that disgruntled Democratic voters will be throwing back at the party for years to come.

The hearing finished with the judge letting attendees know he would make a decision as to whether or not to dismiss the case, but that it would “take some time.” The DNC had better hope he comes back with a dismissal—otherwise the Democrats can look forward to many more months of embarrassing court transcripts.

Branko Marcetic is a regular contributor to In These Times. He hails from Auckland, New Zealand, where he received his Masters in American history, a fact that continues to puzzle everyone who meets him. You can follow him on Twitter at @BMarchetich or email him at [email protected]

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