These cases are being brought by people who are not content to use the democratic process to get their way.
The essential quality of “lawfare” is the use of the legal system to impose costs on political enemies. Often, the process itself is the punishment, with the ultimate success of an investigation, lawsuit, or prosecution being beside the point. When civil lawsuits are involved, major warning signs of abusive lawfare include the assertion of technical violations of law without any proof of loss or harm to any particular person; lawsuits brought by people with no standing to sue because they have suffered no personal injury; requests for relief far broader than what the allegations justify; assertions of legal violations that don’t really exist or have no support in the facts alleged; and filings that include a lot of superfluous political rhetoric. This week brought two prominent examples: a federal class-action complaint filed Tuesday against Ron DeSantis in Massachusetts over his flight of 50 Venezuelan migrants to Martha’s Vineyard; and a civil complaint filed Wednesday against Donald Trump by New York attorney general Letitia James in state court in Manhattan.
First, the DeSantis lawsuit, which argues that Florida officials misled the immigrants in order to get them to agree to get on the plane, and told them they were going to Boston or D.C. To start with, the complaint does not inspire confidence that anybody read the thing carefully before filing it: We are told that “Plaintiffs have led lives inflicted by violence,” that they were told “bold-faced lies,” and that the defendants’ conduct “violates the U.S. Constitution and federal and states cited above.” The lead plaintiff, Alianza Americas, is an activist group based in Chicago and funded by George Soros’s Open Society network. It claims that it is “forced” by DeSantis’s actions to shift its advocacy priorities. Remember when the Job Creators Network sued Major League Baseball over moving the All-Star Game and I told readers that this same argument for Article III standing was bunk? The judge agreed, and Job Creators Network ended up withdrawing the case rather than fight the issue further.
The case should not be a class action: While the complaint cites written materials describing Massachusetts programs for aid to immigrants — programs whose requirements the complaint says the immigrant plaintiffs did not satisfy — the core of the case is fraud by oral representations, and there’s a large body of law under which it is very hard to get a case treated as a class action if the issues are about what was said to people, what they believed, and whether they acted in reliance upon those statements. DeSantis’s office says that the immigrants signed waivers and that many were happy to go to Martha’s Vineyard; even if that was not true of everyone, the fact that different people made choices for different reasons, and that not everybody wants to be represented by a class action, is typically a basis for rejecting class-action status. Denying class certification would convert this into a lawsuit by a handful of people looking to get money.
The complaint also asserts a whole bunch of violations of federal law that are major stretches. The plaintiffs sue DeSantis on the theory that he’s improperly using federal Covid money to pay for state immigrant-relocation programs or interfering with federal immigration laws, and it is hard to see how they have any plausible standing to sue over that. There are a bunch of federal constitutional Section 1983 claims for violation of procedural and substantive due process, equal protection, and unlawful arrest, none of which have anything to do with claims that people were lied to about receiving benefits. The closest the complaint comes to a federal claim is the theory that misleading people about the plane’s destination is some form of unlawful seizure analogous to common-law false imprisonment. Outside of the constitutional claims, the plaintiffs assert a battery of common-law claims under Massachusetts common law — but sovereign immunity typically prevents government officials acting in their public capacity from being sued under state law.
It is also unclear that the immigrants’ stories will hold up under scrutiny. One claims to have a pending court date in Texas, which raises the reasonable question of what she thought she was doing by getting on a cross-country flight to the East Coast; another claims to have a court date in Virginia, despite entering the country in Texas.
Then, there’s the New York AG’s case against Trump, which is plainly intended to make up for the failure thus far of a bushel of federal, state, and local investigations in New York to produce any indictment of Trump. It is extremely obvious that none of this is about finding a crime and pinning it on the guilty; these have all been investigations in which the investigators decided who they wanted to charge for reasons of politics, and combed through the law books and Trump’s business searching for something to charge. That is a texbook example of abuse of prosecutorial power. The theory of the current lawsuit is that Trump and his business misled lenders, insurers, and the government by inflating the value of Trump’s business. As I have explained in detail here and here, there are three core, interrelated problems with suing or prosecuting Trump for misleading his lenders and other businesspeople:
- The government has yet to show that anybody was actually harmed — e.g., a lender who never got paid back. The fundamental purpose of the civil and criminal law is to remedy injuries, not simply to play “gotcha.”
- Even under laws that do not require proof of loss or damage or proof of reliance on misrepresentations, the government typically still has to prove materiality — i.e., that the lies actually mattered.
- In contesting materiality, it is entirely fair game and usually considered legally relevant and admissible that you were lying to sophisticated people who knew the truth and didn’t care, or could easily determine it, or dealt regularly with this kind of thing in the real-estate business and discounted self-valuations accordingly.
The attorney general strains to interpret provisions of New York Executive Law 63(12) to pursue a claim in which none of this matters, arguing that she can sue over things that never caused anybody to lose a penny. She admits, in fact, that Trump — who had suffered repeated business bankruptcies in the past following overly optimistic valuations of his businesses — was openly notorious for inflating his personal wealth:
Some aspects of the scheme were well known publicly. For example, Mr. Trump’s desire to keep his reported net worth high was widely reported. In a 2015 article, Forbes wrote that of all the individuals who have appeared on its list of the 400 wealthiest Americans, “not one has been more fixated with his or her net worth estimate on a year-in, year-out basis than Donald J. Trump.” The article described Mr. Trump’s net worth as a “subject that he cares about to the depths of his soul.” That same article quotes Mr. Trump on his motivation for inflating his net worth: “It was good for financing.”
Gee, I wonder if the banks lending him millions of dollars were aware of this. James also throws in an entirely unnecessary footnote claiming that Trump should be federally prosecuted — knowing full well that he would have been federally charged under these very laws if there was any basis to do so:
While not a basis for recovery in this action, the conduct alleged in this action also plausibly violates federal criminal law, including 18 U.S.C. § 1014 (False Statements to Financial Institutions) and 18 U.S.C. § 1344 (Bank Fraud). Under those provisions, a defendant violates federal law by knowingly submitting a false document or statement in order to influence the decision of a federally-insured bank or to obtain money from a bank by means of false representations or pretenses. There is no requirement of loss or reliance. OAG is making a referral of its factual findings to the Office of the United States Attorney for the Southern District of New York.
In one of the more bizarre excesses in the complaint, James actually argues that Trump defrauded his insurers by failing to tell them he colluded with the Russians:
Trump Organization personnel made no disclosure at the January 10, 2017 meeting with [insurance] underwriters or at any time prior to binding the policies that incepted on January 30, 2017 about any circumstances involving Russia and the 2016 presidential election, including the June 2016 meeting at Trump Tower with Ms. Veselnitskaya, or the effort to develop a Trump-branded property in Moscow. With the exception of the House Intelligence Committee investigation and Mueller investigation into Russian interference in the 2016 presidential election, none of the investigations and inquiries referenced in AON’s February 8, 2019 claim notice, or the circumstances giving rise to those investigations and inquiries, had previously been disclosed by Trump Organization personnel to underwriters during renewal negotiations.
There are, of course, long-recognized legal doctrines that a business has no duty to engage in self-flagellation by accusing itself of misconduct in the worst possible light.
Both of these cases have the hallmarks of lawfare, waged by people who are not content to use the democratic process to get their way.