In a reply brief filed Monday, attorneys for Hillary Clinton and a collection of other defendants renewed calls for sanctions against Donald Trump’s attorneys over a thus-far-failed racketeering case in the Southern District of Florida.
The other defendants who filed the joint sanctions brief also include Clinton’s campaign, John Podesta, Robert Mook, the Democratic National Committee and its associated company, Rep. Debbie Wasserman Schultz (D-Fla. 23), Charles Halliday Dolan Jr., Fusion GPS, Glenn Simpson, Peter Fritsch, Nellie Ohr, Bruce Ohr, Igor Danchenko, Rodney Joffe, Neustar Security Services, Neustar Inc., and Orbis Business Intelligence Ltd.
Those were just some of the named defendants in Trump’s sprawling archlawsuit that sought to tie together myriad grievances connected to the 2016 election — which Trump won. The defendants quickly pointed out that Trump failed to file his case before the applicable statute of limitations barred the case from moving forward; plus, they said he failed to state a claim that a federal court could countenance. U.S. District Judge Donald M. Middlebrooks rubbished the litigation via a harshly worded opinion that highlighted the absurdity of the case, but Trump’s attorneys are appealing that dismissal on a recently extended timeline.
The reply request filed Monday employed new language to repeat old themes:
Plaintiff begins his brief opposing sanctions by asserting that sanctions are a “drastic remedy.” But drastic remedies are warranted in cases of drastic wrongs. Here, Plaintiff and his counsel pursued a sprawling and costly suit for millions of dollars against dozens of Defendants. Plaintiff’s two complaints were from the start entirely unfounded on both fact and law. Many of the allegations were contradicted by documents Plaintiff himself cited, or by readily available and judicially noticeable sources, including Plaintiff’s own tweets. Separately, Plaintiff’s legal theories were fundamentally flawed or foreclosed by binding precedent. Indeed, every one of Plaintiff’s claims was facially deficient in multiple independent respects, as outlined thoroughly in this Court’s September 8, 2022 order dismissing the suit with prejudice.
Plaintiff sought, and was given, the opportunity to cure the deficiencies in his initial complaint. Instead, he compounded them, and clung to these defective theories in opposing another round of motions. Counsel’s conduct in pursuing these claims was objectively unreasonable. Moreover, the pervasive flaws and provocative rhetoric indicate that the suit was pursued to harass Plaintiff’s perceived enemies—and thus, for an improper purpose and in bad faith. This is a strategy Plaintiff has used in the past, and continues to pursue.
Sanctions are plainly warranted here.
Legally, the brief asserts that Trump’s attorneys exhibited conduct that was “objectively reckless” when compared with that of a “reasonable attorney.”
“Reasonable attorneys carefully investigate the bases for their suit and file claims (1) supported by well-pleaded factual allegations that (2) add up to cognizable legal causes of action,” noted the attorneys for the many defendants. “Whatever the allegations may be, a reasonable attorney must confirm they fit within a cognizable legal claim. And, even in the presence of a slam-dunk legal theory, a reasonable attorney must investigate their allegations to confirm they have a good-faith basis in fact and plausibly establish the necessary elements.”
“In several places in the sprawling Complaint and Amended Complaint, Plaintiff’s counsel failed to do one of these; often, they failed to do both,” the defendants’ attorneys asserted.
Specifically, the defendants’ attorneys pointed to the following list of issues with Trump’s lawsuit (we’ve omitted the citations to the record so that it’s easier to read):
For example, Plaintiff offers no defense of the fact that his counts for “Agency” or “Respondeat Superior” were foreclosed by binding Florida precedent. He never defends his decision to bring a “malicious prosecution” claim despite never being prosecuted. He offers no justification for his allegations that Defendants provoked the Crossfire Hurricane investigation, despite citing documents to the contrary. He never explains how his allegations of unspecified lost business opportunities comply with the most basic pleading requirements, nor how his suspension from Twitter could be the result of Hillary Clinton’s “misinformation campaign,” when Twitter’s own statement is to the contrary.
Respondeat superior — Latin for “the master must answer” — is the legal theory that the people in charge of a given situation should be forced to answer — or pay — for the wrongs which result from it. Usually it means that employers must pay for the torts of their employees that are committed within the scope of their employment.
Later, the defendants’ attorneys said Trump’s attorneys cooked up bogus arguments to avoid dealing with the statute of limitations and used “an interpretation of case law that the Court has already rejected” in order to try to avoid the fatal flaw to their case that the usual time bars presented.
The defendants next took aim at Trump’s attorneys’ allegedly loose use of footnotes and citations:
Plaintiff next (at 8–10) argues that he did not misstate facts in citing documents in the Amended Complaint. To take his first example, he asserts (at 8–9) that it was fair to allege in the Amended Complaint that the “scheme was conceived, coordinated and carried out by top level officials at the Clinton Campaigns and the DNC—including ‘the candidate’ herself”—because the IG Report found that “‘the candidate’ was aware of Steele’s reporting.” Plaintiff now claims the footnote is read as a citation only to the language “the candidate.” No reasonable reader would understand the footnote to be that limited, given Plaintiff’s extraordinary factual allegations. And the assertion that Clinton was supposedly “aware” of Steele’s reporting is far from a finding that she personally “conceived, coordinated, and carried out” a “scheme” to smear Trump. The IG Report simply does not support the allegations as written.
Nor does Plaintiff’s excuse for this single citation to the IG Report address the glaring issue with his entire suit, which is premised on the allegation that Defendants were responsible for the Crossfire Hurricane investigation. DE 177 (“Am. Compl.“) ¶ 3. The IG Report—cited in the Amended Complaint’s very first footnote—conclusively refutes the core of Plaintiff’s claims, finding that the FBI opened the investigation “for an authorized purpose” and “with adequate factual predication” that had nothing to do with Defendants or the Steele Dossier. IG Rpt. at 346–47. Plaintiff’s own incorporated documents undercut his claim—further supporting sanctions under Section 1927. Sanctions Mot. at 7–8.
Indeed, Plaintiff’s excuse here is emblematic of the problem with this suit as a whole, and why sanctions are warranted. The statement that “the candidate” was “aware” is transmuted into an allegation that she “conceived, coordinated, and carried out” a “scheme.” Am. Compl. ¶ 3. That leads to unsupported allegations of all Defendants’ liability for more than 24 million dollars for orchestrating a “false narrative . . . so outrageous, subversive and incendiary that even the events of Watergate pale in comparison,” id. ¶ 1. This is not careful and fact-based lawyering, particularly when paired with legal theories that are poor—indeed, impossible—fits for the facts.
Later, the defendants said Trump’s attorneys wrongly “multiplied the proceedings.” The argument here is that Trump simply re-washed his original theories into an amended complaint that did not cure all of the original defects in the case.
Eventually, the defendants’ attorneys said Trump was wrong to complain that they “put in the time and effort to conduct the careful legal and factual analysis that Plaintiff had not.”
“Plaintiff is a serial litigant who has brought several previous, dismissed lawsuits against his perceived foes,” the defendants then noted. Specifically, they said Trump pressed one theory about his long-running suspension from Twitter in one case but then filed an incongruent explanation for his suspension in another case. In the first, he blamed “Democrat legislators,” and in the second, he blamed a “misinformation campaign waged by Hillary Clinton,” the filing asserts.
The defendants have sought $621,043.83 in attorneys fees against Trump.
The full reply filing is here.
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