Saturday, March 13, 2021

Trump faces civil suits - an alternative path to discovering the truth

Joyce White Vance, a former U.S. attorney in Alabama, now a professor at the University of Alabama School of Law, writes about Trump’s legal troubles in the Washington Post: Civil suits may pry out the information we need to hold Trump accountable. The former president faces at least 10 lawsuits, and procedural rules he can’t dodge.

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When I asked Mary Trump why she was suing her uncle, former president Donald Trump, she replied: “Justice. For justice.” Like so many who have tried before, she seeks to hold him accountable, to make good on the tarnished principle that no man is above the law. Impeachment failed — twice — and although criminal investigators have nipped at Trump’s heels for years, he has never been charged with a crime, even in the case where he was identified as the unnamed co-conspirator of his former lawyer, who went to prison.

Civil cases differ from criminal cases in obvious ways: They seek money damages; no one goes to prison; and plaintiffs establish their claims by a preponderance of the evidence, not “guilt beyond a reasonable doubt.” But civil cases differ in another way, too. They have extensive pretrial discovery. Nothing in a criminal case — or impeachment, for that matter — compares to civil discovery, the process of scooping up evidence from depositions of parties and witnesses, requests for documents, and written questions answered under oath. Discovery is more regimented in criminal cases; it primarily involves the prosecution sharing with the defense the evidence it will use at trial, as well as exculpatory evidence. Civil discovery, in short, can lead to the mother lode.

Trump is a defendant in at least 10 civil cases, including his niece’s. A reckoning awaits — one that will require his personal participation in instances where he has no Fifth Amendment privilege to assert, and it is likely to be speedier and more direct than any criminal reckoning.

Rep. Eric Swalwell (D-Calif.) elected this route. He filed suit this month against Trump in federal court in the District of Columbia under the Ku Klux Klan Act, which allows damages against anyone conspiring to “prevent by force, intimidation or threat” an official from discharging his duties. His lawsuit alleges that Trump, his son Don Jr., lawyer Rudy Giuliani and Rep. Mo Brooks (R-Ala.) were participants in a conspiracy to interfere with the performance of congressional duties. It alleges that the four spread baseless claims of election fraud and riled up the crowd that ultimately stormed the Capitol on Jan. 6. The suit also claims that the defendants were negligent and intentionally inflicted emotional distress.

Once a civil case survives a motion to dismiss (an early stage that tests whether the allegations are legally actionable), discovery begins in earnest — the collection of precisely the sort of evidence Trump vigorously guarded throughout his presidency, hiding behind excessively broad claims of executive privilege or simply refusing to provide it. A private citizen who is a party to a civil lawsuit has to comply. Parties can’t refuse to be deposed. They can’t dodge questions they don’t want to answer — the deposition proceeding requires a response. It is not unheard of for a judge, in a case with a reluctant deponent, to require that a deposition be taken in the courthouse so responses can be compelled if necessary. Parties can object to questions, but only as challenges to their admissibility later on. An answer that proves false can lead to perjury charges.

While discovery often proceeds under a protective order, that doesn’t mean the information remains secret forever. Much of it tends to become public as the parties file and argue motions. While some information (that involving national security or something highly personal, for instance) can stay protected, a heavy burden is placed on litigants who seek to keep information from public view. A judge in a civil case pending against the Trump Corporation in the Southern District of New York has adopted rules for her courtroom stating that the public has a right of “access to judicial documents” and required that a motion to seal any materials be made publicly. The party that wants to conceal material has the burden of persuading the court it should remain confidential.

Discovery can transcend the civil setting and be of use in a criminal case. The Swalwell suit and one brought by Rep. Bennie Thompson (D-Miss.), also invoking the KKK Act, parallel the criminal investigation into the Capitol insurrection. This could lead people who believe they may have criminal exposure around the insurrection, including defendants in the civil cases, to invoke the Fifth Amendment right against self-incrimination to avoid being deposed. Doing this would be revelatory — Trump has famously expressed the view that only the guilty take the Fifth. But mere witnesses to events surrounding Jan. 6, lacking any Fifth Amendment privilege, would have to submit to depositions, which might provide fuel for the criminal investigation.

Civil cases are often delayed to permit criminal cases to proceed. That’s one way we might find out if the Justice Department, which does not appear now to have an open investigation into Trump or those around him, plans to pursue a criminal case. But evidence of criminal conduct discovered in civil cases can typically be shared with prosecutors. In a recent Washington state case, for example, civil lawyers sued a number of defendants, including the state auditor, Troy Kelley, over misappropriated mortgage fees that were never refunded to borrowers. They developed evidence in the civil case of possible criminal conduct, which they shared with the U.S. attorney in Seattle. Kelley was convicted in a federal trial.

While a criminal investigation could delay proceedings in the Swalwell and Thompson cases, that possibility doesn’t exist in purely civil cases against Trump. The furthest along is Doe v. the Trump Corporation, a class action brought by four anonymous plaintiffs against Trump and his children Don Jr., Ivanka and Eric, essentially alleging that they fraudulently persuaded people to buy into what they billed as business opportunities, which allegedly worked more like multilevel marketing schemes. The case was argued in the U.S. Court of Appeals for the 2nd Circuit in January after the Trumps made a belated effort to send the case to arbitration. A district judge ruled they had acted in bad faith, and no arbitration agreement applied. If, as seems likely, the 2nd Circuit affirms and sends the case back to the district court, the Trumps will be out of luck, and discovery will commence.

Donald Trump is also the defendant in two separate cases brought by women who say he defamed them after they accused him of rape or sexual assault. Summer Zervos’s case is awaiting the result of an appeal in New York state’s highest court. E. Jean Carroll sued Trump after he accused her of fabricating a claim of rape. That case is on appeal in the 2nd Circuit, with Trump claiming immunity because his comments were made in the course of his official duties as president. It’s hard to see how that applies to ridiculing a woman over an alleged rape that occurred decades ago; the Justice Department should reverse course and discontinue former attorney general William P. Barr’s position that DOJ should defend Trump in this case. It seems highly likely that the 2nd Circuit will send the case back to the trial court, where discovery can begin. The case is straightforward in scope. Depositions of the only witnesses — Trump, Carroll and two friends with whom she shared details of the alleged rape contemporaneously — could be taken expeditiously. Carroll also seeks a DNA sample from Trump to see if it matches that on the dress she wore at the time of the alleged rape. The case could proceed speedily to trial. And in any dispositive motion brought to dismiss the case, there would likely be public briefing and argument. Evidence offered by both sides would come to light in a case that turns on whether the former president raped Carroll.

In her lawsuit, Trump’s niece Mary alleges that she learned from a New York Times report that her inheritance from her father, which her uncle had managed along with other family members since she was 16, was fraudulently handled. Her complaint alleges that “all told, they fleeced her of tens of millions of dollars or more.” This case, filed more recently and moving more slowly than other civil matters, confronts Trump with the possibility of a full-on inquiry into family finances, something he described as a red line during the Mueller investigation and has consistently sought to avoid.

Trump, at some point, will undoubtedly dub the civil cases a new type of witch hunt, brought by so many people, often women, for so many alleged wrongs. He has the opportunity to challenge the legal sufficiency of each case, meaning a judge would decide if there is enough basis to proceed. So far, most of these cases are well past the point where Trump can write them off as harassment. He will have to defend them on the merits.

It’s uncertain whether Trump will ever be indicted, but any criminal process would be lengthy and involve years of appeals. Civil lawsuits provide an alternate path to learning the truth and achieving a measure of accountability. I am reminded that the Ku Klux Klan was broken in Alabama not by criminal prosecutions but by a civil lawsuit that led to its bankruptcy.

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