A new lawsuit by the Democratic National Committee against lots of defendants asks for money damage for the 2016 cyber attack on its email accounts. The new case shows vast improvements in the methods of thievery since the Committee’s 1972 lawsuit against the Committee to Re-elect the President (that would be Richard M. Nixon) or CREEP. But the legal theory is the same in both cases.

If the new case results repeat those of the old one, the Dems will be happy pols indeed: CREEP settled for $ 750,000 on the day RMN resigned in 1974!

In 1972, the burglars (all wearing suits) broke in to the DNC office in the Watergate. And the rest–literally–is history.

In 2016, according to the complaint in DNC vs. The Russian Federation, et al (and I do mean al), the thefts were accomplished electronically, slamming the DNC with financial losses and were a proximate cause of Trump’s defeat of Clinton. If prime shirting and Zegna ties were needed it was only to celebrate because the thieves could comfortably steal in their bedclothes if they wished.

At least three simple litigation staples distinguish the Mueller inquiry from DNC vs. Russia (a lot of the other defendants are Juniors, e.g.: Donald Jr., Manafort, Jr. and Stone, Jr. but Gates is a III): depositions, the burden of proof, and a jury.

Depositions are the fatty foods of the heartache and heartburn of litigation: they hurt because they go on forever and incur huge legal fees. Designed to sharpen and define the issues in the court case and trial to come, in fact they often make a mishmash. In the DNC case, the defendants still around after Russia and the Russian army are dropped will technically be required to testify under oath.

And Trump has to appear (in theory, folks!) because of Paula Jones vs. William Jefferson Clinton that holds Presidents have to appear at civil depositions.

They will all take the fifth if the case ever gets that far thus providing material for the entire MSNBC primetime schedule. But defendants sometimes like depositions because they supply delay. Bruce Bromley, Esq. famously quipped, “Bust if you must the giant trust, but let’s take depositions f’ust!”

Witnesses can be deposed too. Because of busy schedules, these depositions can take place over days or weeks, with two hours one day and three hours a week later, etc. The oath is only administered on the first day. Lawyers conducting the depositions often say on the adjourned date, “Mr. Witness, I remind you that you are still under oath,” as a kind of mini-intimidation technique. On one occasion when I used that line the witness responded, “I haven’t lied since I left here on Tuesday!”


The plaintiff’s burden of proof in civil cases is a “preponderance of the evidence,” or as the late Prof. Fred Rodell would have it, you win if you have more proof than the other guy. In criminal cases it’s “beyond a reasonable doubt,” a big leap.

And there will be  a jury in DNC vs. Russia–a New York jury. These folks use common sense and they tend to favor plaintiffs over rich and famous defendants like the Juniors and the III. Imagine a Con Edison employee (the typical juror in the Southern District) getting a load of son Don, Manafort and blustery Stone. If it comes to that (it won’t) Trump did not pick up a lot of votes in the Southern District so jurors might just not like him.

Lawsuits are often filed for reasons having nothing to do with actual litigation outcomes. The 66-page complaint in DNC vs. Russia suggests as much because it’s a “speaking complaint” that tells a story, table of contents and all! Judges don’t like being used. And this case is brought in–ta da!–the Southern District of New York, where you might have noticed that judges are uniquely able and independent.

Case closed? We’ll see.