The DNC has laid itself bare to a potentially disastrous discovery process that could expose the Russia-hacking and collusion stories as carefully orchestrated falsehoods.
By George Parry
On August 3, 1948, Time magazine’s associate editor Whittaker Chambers testified before the House Un-American Activities Committee that, in the 1930s, he had been “a member of the Communist Party and a paid functionary of that party.” He told the committee he had worked with a network of federal employees to bring about “the Communist infiltration of the American government.” He identified former State Department official Alger Hiss as a member of his spy network.
Hiss, a graduate of Harvard Law School, had clerked for Supreme Court Justice Oliver Wendell Holmes. After his service in the State Department, he became president of the Carnegie Endowment for International Peace, the position he held at the time of Chambers’ testimony. He was Eastern establishment royalty with a distinguished record of public service and an impeccable reputation. The accusation that he had been a Communist set off a media frenzy.
One month later, Hiss sued Chambers for defamation. During civil discovery in that case, Hiss’ lawyers demanded that Chambers produce written proof of his relationship with their client. They were confident that Chambers was lying.
Much to their shock and utter dismay, Chambers produced copies of stolen State Department cables that he claimed Hiss had provided for use by Soviet intelligence. In addition to being a Communist, the civil discovery had produced physical evidence that Hiss had been an espionage agent for the Russians.
This astonishing development resulted in the Justice Department launching a criminal investigation. Because the statute of limitations had expired on any possible espionage charges, the government laid a perjury trap. Before the grand jury Hiss denied under oath that he had passed copies of stolen government documents to Chambers. Consequently, he was indicted, convicted of perjury, and sentenced to five years imprisonment.
This cautionary tale is a prime example of the unexpected consequences of litigation. By pursuing his civil claim for defamation, Hiss sowed the seeds of his own destruction in criminal court. He went to prison because he had failed to realistically assess the dangers inherent in filing his lawsuit.
Another Set of People Underestimate Discovery
That brings us to the recent lawsuit filed by the Democratic National Committee alleging an illegal conspiracy by President Trump, the 2016 Trump campaign, Republican strategist Roger Stone, Paul Manafort, WikiLeaks, and others with the Russian government to win the 2016 presidential election. Central to the conspiracy was the purported hacking by the Russian government of the DNC’s computers and the dissemination of the hacked emails to harm Hillary Clinton’s candidacy.
The DNC is trying to break new legal ground. Apparently it believes that losing a political campaign is grounds for money damages or something. The legal basis for recovery is murky at best.
But what is clear is that the DNC is following in Hiss’s path. It has hung its case on the alleged Russian hack. Since this is central to its theory of liability, it is going to have to prove by a preponderance of the evidence (the level of proof in civil cases) that the Russians did the hacking and shared the results with the Trump campaign. On the other hand, the defendants are now able to legally test and challenge that claim.
Assuming the case survives a motion to dismiss for failure to state a valid legal claim, the DNC has just opened itself up to civil discovery by the defendants, who can now compel the production of documents and other physical things, and take the depositions of DNC officials, employees, associates, candidates, operatives, and others.
In short, the DNC has just invited the defendants to peruse its most deeply held secrets.
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