Donor rights, donor intent, rear their heads in lawsuit against DNC

There are plenty who take exception to Hillary Clinton’s self-pity book, titled What Happened, including Democrats and far-left progressives. “I’ve been a Democrat my whole life and I didn’t vote for her and it had nothing to do with Russia or Jim Comey,” said Elizabeth Lee Beck, one of the attorneys, along with her husband Jared Beck, representing 150 financial supporters of Vermont Sen. Bernie Sanders, in a class action lawsuit against the Democratic National Committee and its ousted chairwoman, Rep. Debbie Wasserman Schultz (D-Fla.).

The legal action that Sanders supporters filed before the end of the 2016 election was dismissed for lack of standing in late August, but the plaintiffs appealed in September. It’s a case that might say as much about the litigious left as it does about the biases of the DNC. But if only the case could make it at least to the discovery process, Bernie supporters would have a better idea of “What Happened” to their guy in the primaries. “There are different reasons so many Democrats didn’t vote for her,” Beck continued. “For me it’s because you don’t reward bad behavior.” For her part, Hillary blames Bernie, along with former FBI director Comey and the Russians. Her book says the Sanders’ candidacy is responsible for “making it harder to unify progressives in the general election and paving the way for Trump’s ‘Crooked Hillary’ campaign.” As Matthew Vadum, senior vice president at the Capital Research Center, wrote recently for FrontPage Magazine:

Clinton also sticks a knife into socialist Sen. Bernie Sanders (Independent turned Democrat turned Independent) for daring to run against her for the presidential nomination. What Sanders said about Clinton during the primaries caused “lasting damage,” she wrote in the book. The senator “had to resort to innuendo and impugning my character” because the two candidates “agreed on so much.” If Sanders threw a little mud, perhaps he should not be judged too harshly given that the Clinton-controlled DNC, led at the time by her frizzy-haired marionette, Rep. Debbie Wasserman Schultz (D-Fla.), went to great lengths to sabotage his primary run.

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In court, the DNC’s basic argument to the charge of rigging the contest in Hillary’s favor was—so what? Judge William J. Zloch of the U.S. District Court for the Southern District of Florida determined “plaintiffs have not presented a case that is cognizable in federal court.” As for donors, the judge wrote in his Aug. 25 decision, “Nor do these plaintiffs’ donations to the DNC or to Bernie Sanders’s campaign create standing. The act of donating to an organization does not, of itself, create a legally protected interest in the organization’s operations.” But, it’s not over. The plaintiffs filed a notice of appeal on Sept. 8, and the case continues. And, since so many Bernie supporters want justice, why not fight it out? The plaintiffs’ list actually grew from 120 Sanders backers, but Beck said at some point, they had to stop accepting clients. “We had to winnow it down, 150 is a tiny slice,” Elizabeth Beck said in an interview. “My inbox blew up with volunteers.” The plaintiffs, many of whom contributed to the DNC, want their contributions back. In their legal complaint they accuse the DNC of fraud, breach of a fiduciary duty, negligence, unjust enrichment, and negligent misrepresentation for violating Article 5, Section 4 of the DNC charter, which says:

In the conduct and management of the affairs and procedures of the Democratic National Committee, particularly as they apply to the preparation and conduct of the Presidential nominating process, the Chairperson shall exercise impartiality and evenhandedness as between the Presidential candidates and campaigns. The Chairperson shall be responsible for ensuring that the national officers and staff of the Democratic National Committee maintain impartiality and evenhandedness during the Democratic Party Presidential nominating process.

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“To the contrary,” the plaintiffs’ initial complaint filed last summer says, “the DNC was biased in favor of one candidate – Hillary Clinton … Through its public claims to being neutral and impartial, the DNC actively concealed its bias from its own donors as well as donors to the campaigns of Clinton’s rivals, including Bernie Sanders.” The factual basis to the claims are the leaked DNC emails that show DNC staffers, under the leadership of Wasserman Schultz, seemingly seeking to tip the scales to help Clinton win the nomination. It turned into enough of a scandal that Wasserman Schultz had to resign, and other high-level DNC staffers were ousted last year. The Becks, a husband and wife who run the Beck & Lee law firm in Miami, started JamPAC in February 2016, which calls itself, “first and only truly progressive grassroots Super PAC. It is powered by ordinary citizens to serve the people, rather than billionaires and corporations.” Elizabeth said her husband—also not wanting to reward bad behavior—voted for Green Party candidate Jill Stein last November. Elizabeth said she voted for President Donald Trump—even though he called her “disgusting” when she deposed him in a 2011 lawsuit over a failed real estate deal in Florida. Not exactly good behavior, but Elizabeth noted she called Trump names too on TV and said, “I would rather stay home depressed than vote third party. Just the way I am.” She called the DNC lawsuit the strangest case she ever tried, and the Trump civil case the second-strangest. The resignations of Wasserman Schultz and other DNC staffers would seem to at least buttress a claim of impropriety. Nevertheless, the DNC, in its motion to dismiss, denied any favoritism, but doesn’t dwell on the denial. The argument mostly just pooh-poohs the party’s charter as nothing more than a “political promise” and consisting of “not enforceable promises under contract law.”

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DNC lawyer Bruce Spiva argued in court that, “we could have voluntarily decided that, ‘Look, we’re going to go into back rooms like they used to and smoke cigars and pick the candidate that way … that would have also been their right.” Jared Beck countered at the hearing: “Essentially the DNC has now stated in a court of law that it believes that there is no enforceable obligation to run the primary elections of this country’s democracy in a fair and impartial manner … I think these are enforceable obligations. Because, again, money is involved, number one, payment of money based on false understandings that have been created by the defendants.” One of the hacked memos the lawsuit cites says, “Our goals in the coming months will be to frame the Republican field and the eventual nominee early and to provide a contrast between the GOP field and HRC [Hillary Rodham Clinton].” It further calls for a strategy to “muddy the waters around ethics, transparency and campaign finance attacks on HRC.” It’s safe to say the Democratic establishment had decided they’re with Hillary for the 2016 nomination going back to, oh, at least 2013. We can only imagine what it would be like to obtain access to internal communications of the Republican National Committee in 2015 and 2016 to see what establishmentarians were saying about Trump. Going back further, it would be fun to read the DNC’s chats when it was wringing its hands over the chance Howard Dean would be the party’s 2004 nominee, or of the RNC frightened of Pat Buchanan taking over the party in 1996. That’s all speculation, of course. The difference here is there is actual evidence a party committee that violated the rules, regardless of the illicit means by which that evidence became public. The legal question is whether it matters. On one hand, it seems a long shot, as courts might prefer to stay out of how a party picks a candidate—which would maintain the initial finding. On the other hand, a party committee could be viewed the same as any other nonprofit, where a donor has a certain expectation—in this case, of fairness.

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There is precedent for donor lawsuits against other nonprofits. Country icon Garth Brooks successfully sued to get his donation back from an Oklahoma hospital. Lawsuits by donors against universities aren’t uncommon, but they have yielded mixed results. The lawyerly and political answer to whether the Bernie supporters have a case is, “it depends,” said Roger Austin, an election law attorney and former general counsel for the Florida Republican Party. He suspects not, but doesn’t believe it’s a slam dunk given past nonprofit cases. “Despite my more Republican leanings, the objective political analyst in me, and the lawyer in me, sides with the DNC,” Austin said. Donor lawsuits tend to revolve around large donations made to a university or nonprofit group, often in exchange for naming a building after the donor, he noted. But litigation over a political party’s charter is much different, he said. “Would a charter be contractual or legally binding? In my experience, no,” Austin told me. “A charter is like a party platform, a lot of blah, blah. I would think it’s more aspirational than contractual.” Earlier in the case, going back to June, Zloch denied the plaintiffs’ request for court-ordered protection, after a combination of events they perceived as harassment. This included a barrage of threatening calls to another plaintiffs’ attorney, Cullin O’Brien; an alleged burglary in the home of a Minnesota plaintiff; and an odd reported visit to the home of the mother of an employee of the Becks’ law firm. The judge said it would take nearly the entire U.S. Marshals Service to protect all 150 plaintiffs in 46 jurisdictions. Further, he said there was no evidence the actions described were tied to the DNC. Elizabeth Beck was clear that the request for protection was not related to theories surrounding the death of Shawn Lucas (no relation to this writer), whom the plaintiffs hired as a process server in the case. He was livestreamed serving the DNC with the legal papers. His death, which authorities later blamed on an accidental drug overdose, prompted Internet conspiracy theories and attempts to tie it with theories surrounding former DNC staffer Seth Rich’s murder in Washington. But aside from any conspiracy theories, which have nothing to do with any underlying claims, this is a rather large class action lawsuit with plaintiffs from almost every state that has dragged on in federal court for more than a year. Even if it eventually gets dismissed, the case exposes enduring fissures in the Democratic Party and a still kicking “Bernie or Bust” movement. If we are to believe that Russia really was the culprit in accessing the DNC emails, then the Kremlin might well have accomplished one of its goals. Exposing the Democratic Party’s nominating process seems to have—at least for a number of Sanders supporters—undermined confidence in American democracy. Fred Lucas is the White House correspondent for The Daily Signal and author of Tainted by Suspicion: The Secret Deals and Electoral Chaos of Disputed Presidential Elections (Stairway Press, 2016).