Last Tuesday, Senior U.S. District Judge William J. Zloch heard oral arguments regarding a Motion to Dismiss filed by attorneys representing the Democratic National Committee and Debbie Wasserman-Schultz in the class-action lawsuit filed against them. The lawsuit seeks damages on behalf of Democratic Party donors who made financial contributions to Bernie Sanders and the Party under the presumption the primary would be conducted fairly per the DNC’s charter. The lawsuit was filed in June 2016 following the release of leaked emails showing behind-the-scenes collusion between the DNC, the Clinton campaign, and other entities to ensure Hillary Clinton would be the Democratic nominee prior to Americans casting votes in the party’s primary contests.
Transcripts released from the hearing Friday expose numerous shocking revelations presented by the Democrats’ counsel arguing in support of the Motion to Dismiss regarding the way the Democratic Party views its obligations and responsibilities in conducting the primary nominating process. Judge Zloch did not issue a ruling from the bench; he will issue a written order in response to the Motion to Dismiss at a later, unspecified date as he considers the merits of the defendants on the Motion.
The following is a list of numerous jaw-dropping statements made by lawyers on behalf of the Democratic National Committee that should be examined as the American public awaits the Judge’s order.
1. The crux of the Motion to Dismiss asserts the Judge is not in a position to determine how the Democratic Party conducts its nominating process.
In the first of many galling and naive assertions, the Democrats’ counsel advise U.S. Federal Judge William J. Zloch, recently promoted to a Senior bench, that the lawsuit should be dismissed outright because litigating the DNC’s business would “drag the Court right into the political squabbles”. Zloch, appointed by Ronald Reagan in 1985, is told: “There’d be no way constitutionally to offer redress”, despite this being the Court’s “one job”. City, state, county, and Federal courts review legal issues related to political squabbles big and small on a daily basis, and specifically exist as a separate branch of our government to perform this function independent of political disputes arising in the executive or legislative branches of the government.
2. The Democratic Party views itself as having authority to favor a candidate without any legal repercussions.
Without any pretense the Democratic primary nominating process should be expected to be conducted fairly, lawyers for the Democratic Party tell Judge Zloch the lawsuit should be thrown out because the Party has the freedom to determine its nominees by “internal rule”, not voter interests, and thus the party “could have favored a candidate”.
Lawyers for the Democratic Party suggest the lawsuit “can’t be resolved” by the Court because it is based on an internal rule that “cannot be enforced”. This statement by lawyers for the Democrats to a Federal judge is a damning indictment the Party may never recover from: the party views itself in no way beholden to voters’ interest whatsoever.
This will play out in further remarks, but in taking this position, the Democrats present themselves as perfectly comfortable with the American public and Court knowing they view the nominating process to be the Party’s choice, and they can and do operate under no legal obligation whatsoever to be representative of the interest of American citizens participating in Party activities and nominating contests.
3. Judge Zloch appeared skeptical, noting the Democrats’ interest to obscure the guarantee of the Party’s impartiality clause.
The DNC’s Charter clearly articulates it is the responsibility of the party and specifically, its Chairperson, to guarantee a fair Presidential primary process and that all DNC staff conduct business evenhandedly to ultimately assure this. Judge Zloch’s correction of the DNC lawyer’s language demonstrates the Judge’s clear understanding that this element of the Charter’s language is central to determining the merits of the DNC’s argument, and shows the Judge did not allow the DNC’s lawyer’s to obscure the specificity of this guarantee in the Party’s charter.
4. The Democrats insist that “impartial” cannot be defined, so the DNC’s impartiality clause is akin to a political promise in that it can not be guaranteed.
Despite the implications of this position, lawyers for the DNC repeatedly denied that the terms “impartial” and “evenhanded” can be defined to the point that a ruling can be issued on what obligations these words carry as they appear in the DNC’s Charter.
Zloch also made a pointed question to clarify if the Democratic Party interprets its ability to show favoritism as “business as usual”, which DNC Attorney Bruce Spiva subsequently denied.
5. DNC’s legal counsel appeared unaware of any procedures in place to determine how the DNC supports state parties as they conduct individual primary nominating contests.
A curious exchange between Judge Zloch and lawyers for the DNC exposed that lawyers for the DNC were either unsure as to how the DNC works to fund state party primaries, or did not have a determined messaging strategy as to how to respond to this critical inquiry from the Judge.
Typically, attorneys prepare heavily for oral arguments related to every aspect of a case that may be litigated; particularly in financial disputes, preparation consists of extensive and diligent analysis of all financial relationships in play and the legal obligations related to all parties and transactions in dispute.
While the DNC’s attorneys may have been legitimately unprepared as to how to respond to this inquiry, it is also possible they are deliberately avoiding to specify these details to the court at this time, particularly given a scandal that emerged around the same time showing officials trying to hide fact that Hillary Clinton allowed states to keep only a small fraction of proceeds earned from joint fundraising with the DNC.
Theoretically, all 50 states primary contests would need to being determined to have been conducted properly to ensure the state delegates are allocated appropriately to competing candidates following the primary contests. The financial relationship between the DNC, state parties, and Democratic party voters in all 50 states would need to be examined by the Court should Judge Zloch seek to ensure financial support entitled to state parties from the national organization were provided equitably and without prejudice. Should additional information come to light that show funds disproportionately allocated to states that resulted in Clinton wins, this would have further implications on the Judge’s ruling on a state-by-state basis.
6. The Democrats’ lawyers takes the position that while the Democrats are not legally obligated to conduct the primary fairly, they did in fact conduct the 2016 primary fairly.
Over several hours of oral arguments, counsel for the DNC gave somewhat contradictory statements that make it difficult to determine the exact argument the Party is taking in response to the lawsuit. While admitting repeatedly and in great detail that the party has no legal obligation to conduct the primary impartially, Spiva later insists that the 2016 primary was in fact conducted impartially.
7. In closing remarks, U.S. Federal Court district judge emphasized: “Democracy demands the truth”.
The lawsuit filed against the DNC seeks damages on behalf of three “classes” of Americans who have been arguably disaffected by the DNC’s actions: donors to Bernie Sanders and donors to the Democratic Party whose financial donations may have been used fraudulently, and members of the Democratic Party broadly who were allegedly denied the benefit of impartiality offered in exchange for their participation in the Party’s electoral processes.
While the U.S. Supreme Court dubiously asserted in Bush v. Gore that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States,” the issue at hand is not a matter of voting rights, but a matter of fraud. The lawsuit brought forth against the DNC pertains inherently to the financial transactions that took place, and what laws the DNC may have violated in how they conducted the primary, versus how the primary was expected to be conducted when donations were solicited.
To rule on this Motion, and ultimately the merits of the lawsuit itself, Judge Zloch concluded the hearings identifying the element inherently and ultimately required to guarantee a good faith democratic process: the truth.
In determining what if any damages are owed to the American public by the Democratic Party and Wasserman-Schultz, Judge Zloch will first rule if the Motion to Dismiss is granted or dismissed. Should the Motion be dismissed, the lawsuit will proceed to a Discovery phase, allowing counsel to conduct depositions (interviews) of relevant parties to solicit responses related to the suit to be given under oath on behalf of the affected citizens claiming damages.
No timeframe was given by the Judge as to when the order would be issued.