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How the DNC lawsuit could become a powerful tool

The Democratic National Committee is claiming there was a broad conspiracy to aid Donald Trump’s presidential campaign by hacking and leaking stolen emails. How hard will that be to prove in court? William Brangham gets analysis from Susan Hennessey, executive editor of Lawfare, about why they are suing, the other legal challenges facing the president and takeaways from the Comey memos.

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  • Judy Woodruff:

    And now William Brangham is here with more on the legal implications of the DNC lawsuit.

  • William Brangham:

    For that analysis, I’m joined by Susan Hennessey. She is the executive editor of Lawfare and a senior fellow at the Brookings Institution.

    Welcome back to the NewsHour.

  • Susan Hennessey:

    Thanks for having me.

  • William Brangham:

    So, you heard about Tom Perez.

    He’s alleging that the Russians, the Trump campaign, WikiLeaks all conspired to steal the DNC’s e-mails and then spread them around to make Hillary Clinton look bad.

    From a legal perspective, what do you make of their suit?

  • Susan Hennessey:

    So, Perez sort of notes that there is ample evidence.

    There’s certainly quite a few allegations. Some of it is really well-grounded. It relies on things like this intelligence community assessment of Russian interference. But a lot of it relies on things like news reports, including a single source or anonymously sourced reports.

    So the challenge in this suit is going to be translating those essentially news reports into evidence that is going to be admissible in court.

    Now, what’s relevant right now is not necessarily whether they can do that, but whether or not they can survive a motion to dismiss, whether or not they have a well-pleaded complaint on the face.

    It does seem likely that this lawsuit, at least some defendants, at least some claims are likely to survive a motion to dismiss. This is most relevant because it means that they will move to the discovery phase.

    That might end up becoming a really, really powerful tool for the DNC to actually unearth new information.

  • William Brangham:

    So, the tricky part for their case, it seems to me, that while there might be discrete evidence of the WikiLeaks release, the DNC being hacked, some members of the Trump Organization indicating that they would like to get dirt on Hillary Clinton, they have to tie all of those things together as a connected conspiracy, right?

  • Susan Hennessey:

    Right.

    So what they are alleging is this broad conspiracy. They’re alleging that there was an actual agreement between Russian actors, the Trump campaign and their associates to hack the DNC and an agreement to distribute stolen materials that were to help Donald Trump and harm Hillary Clinton.

    That is a very, very high bar. That certainly is ahead of the public record that we have seen thus far. That’s going to be a difficult showing for them to make in court.

    That said, there is another case going on in the district of D.C. on a different — on a different theory, actually an invasion of privacy theory. There is going to be a hearing on their motion to dismiss just on Monday. So, we do have another case that is going to provide a little bit of a road map as to whether or not these legal claims are going to be sufficient.

  • William Brangham:

    There’s also, of course, the elephant in the room is the Mueller investigation, which is undergoing constantly right now.

    What does this do vis-a-vis the Mueller investigation, because, theoretically, the DNC suit touches on some of the same people, some of the same evidence, some of the same events? Is this a conflict? Can they go on at the same time? Help me understand that.

  • Susan Hennessey:

    Well, I think that they are fundamentally unrelated.

    We don’t know very much about the Mueller investigation, but it doesn’t appear to be particularly reactive to things like this. This, the DNC suit, both relies on the Mueller investigation, because it uses some evidence that actually comes from those court filings.

    It also gets quite a bit ahead. Right? It is alleging this actual conspiracy. But we haven’t seen Mueller make that showing. It does involve — they are related to the extent that they’re talking about the same events and the same people.

    And so I think there’s a way to think about it as a kind of alternative. We don’t know how the Mueller investigation is going to end. Even if he found evidence of serious wrongdoing, that might be included in a report that remains within DOJ, a report that goes to Congress and isn’t distributed to the American public.

    And so this is an alternate vehicle by which the DNC might unearth some of those same — the same or similar facts, but actually in a fashion in which they can conduct their own fact-finding and in a fashion in which they can make these things public.

    So, I think the best way to think about it is sort of parallel tracks, the same subject matter, but not necessarily related.

  • William Brangham:

    This, of course, also comes when the president is juggling so many other legal cases. There’s the Mueller case. There’s the Stormy Daniels case. There’s the Michael Cohen case. There’s the emoluments lawsuit.

    I mean, this is an enormous amount for a White House the Trump Organization’s legal team to be juggling.

  • Susan Hennessey:

    Right.

    It’s also only a year-and-a-half into his term. This is an amazingly complex legal landscape that they’re working through. And we’re starting to see some of the peculiarities.

    In the Southern District case against Michael Cohen, we actually have the president’s private lawyers arguing on attorney-client privilege against Justice Department attorneys. That means Donald Trump’s individual private attorneys are arguing essentially against his institutional attorneys.

    And so I think that really illustrates sort of the strangeness of the situation we’re in and the potential conflicts there.

  • William Brangham:

    Lastly, let’s just shift gears to the release to these Comey memos.

    These were the memos that James Comey contemporaneously wrote down after different meetings with the president. We have heard about those memos for a long time. Now they have been released and we have been able to read them specifically.

    Do the details of those memos tell us anything germane legally with regards to the Russia investigation?

  • Susan Hennessey:

    So, they don’t really offer much new information, sort of, when we consider what Comey has already said in his book and actually in his congressional testimony as well.

    So I don’t know that it advances the ball forward legally at all. That said, it certainly does corroborate Comey’s account. It goes to sort of his credibility. And it sort of knocks down this notion of Comey as a disgruntled employee that’s recounting these events sort of in a way that’s unfavorable to Trump after the fact.

    These are the memos he wrote while still FBI director, while he still presumably wanted to have a good relationship with the president, had every incentive to sort of not make a mountain out of a molehill.

    What we’re seeing in these memos is really a profound degree of concern and a concern that he has remained consistent about, about the way President Trump was treating the Justice Department and his inability to understand the importance of sort of maintaining those institutional norms of independence.

  • William Brangham:

    Susan Hennessey, thank you so much.

  • Susan Hennessey:

    Thank you.

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