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.

Branko Marcetic May 4, 2017

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

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.

“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.

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 staff writer at Jacobin mag­a­zine and a 2019 – 2020 Leonard C. Good­man Insti­tute for Inves­tiga­tive Report­ing fel­low. He is work­ing on a forth­com­ing book about Joe Biden.
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