Democratic National Committee v. The Russian Federation et al

Filing 257

MEMORANDUM OF LAW in Support re: #256 MOTION for Sanctions . . Document filed by Donald J. Trump For President, Inc.. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C)(Carvin, Michael)

EXHIBIT C

Joseph M. Sellers
[phone]
[e-mail]

June 2, 2019

Via Email Only
Michael A. Carvin, Esq.
Jones Day
51 Louisiana Avenue, N.W.
Washington D.C. 20001-2113
Re:

Democratic National Committee v. The Russian Federation, et al., No. 1:18-cv3501 (S.D.N.Y.)

Dear Mr. Carvin:
Contrary to your May 13, 2019 letter, the Special Counsel’s Report does not “refute” the
DNC’s claim that the Trump Campaign conspired with Russia. Rather, the Report methodically
compiles evidence that the Trump Campaign participated in Russia’s plan to interfere in the 2016
election. Over the course of more than 100 pages, the Report details the Campaign’s repeated
suspicious interactions with Russian agents, confirming and bolstering the central allegations of
the DNC’s Second Amended Complaint (“Complaint”).
The Special Counsel specifically warned that his “statement that the investigation did not
establish particular facts does not mean there was no evidence of those facts.” Report at 2. Indeed,
he reiterated in a televised press conference last week that a decision not to prosecute should not
be confused with an exoneration. And yet, this is exactly what the Trump Campaign does in its
letter: It wrongly equates the Special Counsel’s finding that the evidence did not “establish”
beyond a reasonable doubt that the Trump Campaign was involved in a conspiracy with the
farfetched conclusion that the Campaign must be innocent of all charges. The Campaign’s letter
also ignores the different burdens of proof in civil and criminal actions and the fact-gathering tools
that are available to civil plaintiffs like the DNC, but not to prosecutors like the Special Counsel.
In light of these obvious deficiencies, the Campaign’s letter is wholly groundless. We urge
the Campaign to refrain from proceeding with this ill-advised action, as the pursuit of a Rule 11

June 2, 2019
Page 2
motion on the grounds set forth in the Campaign’s letter would itself violate Rule 11 and could be
sanctionable.
1.

The Special Counsel’s Report Provides Ample Evidence of Defendants’ Liability

Contrary to the Trump Campaign’s insistence that the Special Counsel’s Report
“definitively refuted” the DNC’s Complaint, Letter at 1, the Report confirms and reinforces the
central allegations in the Complaint and presents additional evidence that the Trump Campaign
agreed to a plan in which Russia would steal documents from Democratic targets—including the
DNC—and use them to aid Trump. Among other findings, the Report stated that:




In April 2016, Mifsud (a London-based academic with ties to the Russian government)
told Papadopoulos (a foreign policy advisor to and agent of the Trump Campaign) that
the Russian government “had obtained ‘dirt’ on candidate Hillary Clinton,” in the form
of “thousands of emails.” Report at 86-89; cf. Compl. ¶¶ 13, 94. Ten days later,
“Papadopoulos suggested to a representative of a foreign government that the Trump
Campaign had received indications from the Russian government that it could assist
the Campaign through the anonymous release of information damaging to Hillary
Clinton.” Report at 89; cf. Compl. ¶ 99.



In April 2016, Manafort and Gates began sharing internal Campaign polling data and
information on battleground states including “Michigan, Wisconsin, Pennsylvania, and
Minnesota” with Konstantin Kilimnik, a man with known connections to Russian
intelligence. Report at 140. This data sharing continued for several months. “Gates
stated that, in accordance with Manafort’s instruction[s], he periodically sent Kilimnik
polling data via WhatsApp; Gates then deleted the communications on a daily basis.”
In addition to secretly sharing this data, Manafort and Kilimnik “discussed the status
of the Trump Campaign and Manafort’s strategy for winning Democratic votes in
Midwestern states.” Id. at 6, 136-37. Compare generally Report at 129-143 with
Compl. ¶¶ 67, 91, 152, 231. Manafort later “lied to the [Special Counsel’s] Office and
the grand jury about . . . his meetings with Kilimnik[.]” Report at 130; cf. Compl. ¶ 231.



1

In the run up to the 2016 Presidential election, there were “multiple links between
Trump Campaign officials and individuals tied to the Russian government. Those links
included Russian offers of assistance to the Campaign. In some instances, the
Campaign was receptive [to] the offer[.]” Report at 173;1 cf. Compl. ¶¶ 2, 10.

In early June 2016, Rob Goldstone “passed along an offer purportedly from a Russian
government official to provide ‘official documents and information’ to the Trump

Citations to pages of the Report refer to Volume I of the Report.

June 2, 2019
Page 3
Campaign for the purposes of influencing the presidential election. Trump Jr. appears
to have accepted that offer and to have arranged a meeting to receive those materials.”
Report at 185; cf. Compl. ¶¶ 133-36. That meeting took place on June 9, 2016, when
“senior representatives of the Trump Campaign met in Trump Tower with a Russian
attorney expecting to receive derogatory information about Hillary Clinton from the
Russian government. . . . Members of the Campaign discussed the meeting before it
occurred, and Michael Cohen recalled that Trump Jr. may have told candidate Trump
about an upcoming meeting to receive adverse information about Clinton, without
linking the meeting to Russia.” Report at 110; cf. Compl. ¶¶ 137. Compare generally
Report at 110-20 with Compl. ¶¶ 132-138.


At a press conference on July 27, 2016, Trump discussed the release of stolen DNC
documents and data, and claimed that it was “ridiculous” that Russia was involved.
Nevertheless, he “stated that it would give him ‘no pause’ if Russia had Clinton’s
emails. Trump added, ‘Russia, if you’re listening, I hope you’re able to find the 30,000
emails that are missing.’” Report at 18, 49; cf. Compl. ¶ 158. Within “approximately
five hours” of Trump’s request for assistance, Russian intelligence officers launched a
cyberattack against Secretary Clinton’s personal office “for the first time,” targeting
the office’s email accounts. Report at 49. While Russia was engaged in this hacking
effort, Trump asked “individuals affiliated with his Campaign,” including Michael
Flynn, to find the emails. Flynn, in turn contacted Peter Smith, “an investment advisor
who was active in Republican politics,” to enlist him in the effort to find the emails.
Report at 62. Within weeks of Trump’s July 27 press conference, Smith “created a
company, raised tens of thousands of dollars, and recruited security experts and
business associates. Smith made claims to others involved in the effort (and those from
whom he sought funding) that he was in contact with hackers with ‘ties and affiliations
to Russia’ who had access to the emails, and that his efforts were coordinated with the
Trump Campaign.” Report at 63.



On August 23, 2016, Sergei Millian, who told Papadopoulos that he had “insider
knowledge and direct access to the top hierarchy in Russian politics,” sent “a Facebook
message to Papadopoulos promising that he would ‘share with you a disruptive
technology that might be instrumental in your political work for the campaign.’” Report
at 94-95.

Given this extensive evidence that the Trump Campaign conspired with Russia to influence
the results of the 2016 election, the Trump Campaign cannot in good faith claim that the Special
Counsel’s Report “definitively” proves its innocence.

June 2, 2019
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2.

The Campaign’s Letter Rests on a Logical Error

In arguing to the contrary, the Trump Campaign commits a logical error that the Report
warned readers not to make. Specifically, the Campaign assumes that there were only two possible
outcomes from the Special Counsel’s investigation: (1) it would conclusively establish the Trump
Campaign’s guilt; or (2) it would conclusively establish the Trump Campaign’s innocence. And
because the investigation did not conclusively prove that the Trump Campaign conspired with
Russia, the Campaign insists that investigation proved their innocence. By creating a false choice
between these two extremes, the Trump Campaign leaves no room for the Report’s actual findings:
there was evidence of the Trump Campaign’s guilt, but not enough to establish that guilt beyond
a reasonable doubt. On page 2 of the Report, the Special Counsel warned readers not to make that
mistake, explaining: “A statement that the investigation did not establish particular facts does not
mean there was no evidence of those facts.” Report at 2 (emphasis added). Nevertheless, the Trump
Campaign’s letter repeatedly and falsely suggests that, if the Special Counsel’s investigation “did
not establish” a particular fact, then the investigation refuted that fact.
3.

The Campaign’s Letter Overlooks the Differences Between Civil and Criminal Actions

The Campaign’s May 13 letter also overlooks the crucial differences between civil and
criminal cases. It is axiomatic that an “acquittal in [a] criminal action does not bar civil suit based
on the same facts.” 2A Charles Wright et al, Federal Practice & Procedure § 468 (4th ed. 2013);
see also Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003). Similarly, the government’s decision
not to press criminal charges against a defendant has no effect on civil proceedings. Indeed, civil
plaintiffs routinely prevail in cases where the government has declined to prosecute the defendants.
See, e.g., In re: Urethanes Antitrust Litigation, No. 04-1616 (D. Kan.) (after the government
determined there was not enough evidence to prosecute the defendants, civil plaintiffs took the
case to trial and secured a judgment of approximately $1.06 billion). This is not surprising in light
of the different standards of proof in civil and criminal cases and the additional sources of evidence
available to civil plaintiffs.
First, a civil plaintiff’s burden of proof is much lighter than the government’s burden of
proof in a criminal case. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 491 (1985) (noting that
a civil plaintiff only needs to show that it is more likely than not that the defendants violated the
law, while criminal prosecutors must prove their case “beyond a reasonable doubt”). Thus, while
the information available in the Special Counsel’s Report may be insufficient to sustain a criminal
conviction, a civil jury could find the same information more than sufficient to hold Defendants
civilly liable.
In view of the lower standard of proof in civil cases, a civil plaintiff can readily rely on
evidence that a defendant obstructed justice. See 2 Kenneth S. Broun et al, McCormick on Evidence
§ 265 (7th ed. 2016) (“[W]rongdoing by [a] party in connection with its case amounting to an
obstruction of justice is . . . commonly regarded as an admission by conduct.”); see also Great Am.

June 2, 2019
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Ins. Co. v. Horab, 309 F.2d 262, 264 (8th Cir. 1962) (Blackmun, J.) (“It is generally held that, in
a civil case, evidence that a litigant, or his agent, has attempted to influence or suppress a witness
is receivable as an admission or as an indication of the litigant’s consciousness that his case is
weak or unfounded or that his claim is false or fraudulent. Specifically, an attempt to persuade a
witness not to testify is admissible against the party responsible for that attempt.” (citations
omitted)). Here, Defendants’ extensive obstructive conduct, detailed in the Complaint, see Compl.
¶¶ 206-231, will strongly support the DNC’s claims.
Moreover, a civil plaintiff can pursue evidentiary avenues unavailable to prosecutors. For
example, unlike in a criminal proceeding, where a defendant has no obligation to speak to
government investigators regarding her own illegal conduct, a civil plaintiff can compel a
defendant to attend a deposition, and if the defendant refuses, she can be held in contempt of court
or otherwise sanctioned. See Fed. R. Civ. P. 37(b). Similarly, if a defendant invokes her Fifth
Amendment right not to answer specific questions during a deposition or at trial, a civil jury—
unlike a criminal jury—can infer that the defendant invoked her rights because she violated the
law. See, e.g., See Mitchell v. United States, 526 U.S. 314, 328 (1999); Woods v. START Treatment
& Recovery Centers, Inc., 864 F.3d 158, 170 (2d Cir. 2017). Thus, in this case, Trump, Jr.,
Assange, and the Agalarovs—whom the Special Counsel did not interview—can be compelled to
attend depositions, where they will have an incentive to answer the DNC’s questions truthfully
(rather than invoking their Fifth Amendment rights).
4.

Additional Information Pertinent to This Case Continues to Come to Light

The Trump Campaign’s letter also overlooks the fact that the public portions of the Special
Counsel’s Report are not the only source of evidence of Defendants’ wrongdoing. Many passages
in the Report have been redacted, in part to protect ongoing investigations into misconduct
surrounding the 2016 elections.
Additionally, the House Permanent Select Committee on Intelligence (“HPSCI”) and the
Senate Intelligence Committee continue to investigate Russian election interference. Indeed, on
May 8, 2019 the HPSCI issued a subpoena for the unredacted Special Counsel’s Report and the
evidence underlying it.2 Likewise, the Senate Intelligence Committee recently secured an
agreement for Trump, Jr. to testify before that Committee regarding his participation in the Trump

2

House Intelligence Committee Issues Subpoena for Counterintelligence and Foreign Intelligence
Materials in Mueller Investigation, Including Report and Underlying Evidence, U.S. House of
Representatives Permanent Select Committee on Intelligence (May 8, 2019),
https://intelligence.house.gov/news/documentsingle.aspx?DocumentID=638.

June 2, 2019
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Tower meeting, among other topics.3 Not only are these ongoing investigations likely to reveal
additional evidence pertinent to this action, but the very fact that these congressional bodies—led
by both Republicans and Democrats—continue their investigations is a forceful rejection of the
Campaign’s false claim that the Special Counsel’s Report “definitively refuted” the DNC’s “theory
of liability[.]” Letter at 1.
5.

The Campaign’s Letter Misconstrues Specific Events Discussed in the Report

In addition to these overarching problems with the Trump Campaign’s arguments, the May
13 letter presents a deeply misleading picture of specific events discussed in the Report. For
example, the letter falsely claims that “[t]here is no . . . evidence that Papadopoulos told the
Campaign about any ‘stolen materials.’” Letter at 2. But Papadopoulos told investigators that he
recalled an incident where he told Sam Clovis, the Trump Campaign’s National Co-Chair, that he
thought the Russian government had Secretary Clinton’s emails, though he “wavered” about the
accuracy of this recollection. Report at 93.
Similarly, the Campaign’s letter misconstrues the Report’s discussion of the Trump Tower
meeting on June 9, 2016. Contrary to the Trump Campaign’s suggestion, the Special Counsel’s
Report did not provide a complete record of the discussions at the Trump Tower meeting. Rather,
it recounted the meeting participants’ self-serving explanations of what happened, noted that the
Special Counsel was not able to interview two of the attendees (Trump Jr. and Natalia
Veselnitskaya), highlighted some meeting attendees’ conflicting accounts of what transpired, and
observed that the notes Manafort took during the meeting “reflect the general flow of the
conversation, although not all of its details.” Report at 118. Moreover, the Report notes that, even
according to the meeting participants’ self-serving statements, Russia gave the Trump Campaign
some information about the Clinton Campaign, and Kushner expressed disappointment that the
information was not more incriminating. Id. These findings are completely consistent with a
situation where the participants in the Trump Tower meeting discussed stolen Democratic
documents, but failed to record that discussion or confess to government investigators. That
situation is plausible given that: (1) there is documentary evidence showing that the purpose of the
meeting was for Russia to offer documents to the Trump Campaign, Report at 110; (2) the day
after the meeting, Russia attempted to hack into a DNC backup server, Compl. ¶ 143; (3) less than
a week after the Trump Tower meeting, Russia started disseminating stolen Democratic materials,

3

Karoun Demirjian et al., Donald Trump Jr. agrees to testify before the Senate Intelligence
Committee again, Wash. Post (May 14, 2019), https://www.washingtonpost.com/world/nationalsecurity/donald-trump-jr-agrees-to-testify-before-the-senate-intelligence-committeeagain/2019/05/14/2efd4574-7686-11e9-bd25c989555e7766_story.html?utm_term=.eef8d1b7e644.

June 2, 2019
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Report at 42; Compl. ¶ 148; and (4) members of the Trump Campaign lied about the existence and
substance of the meeting, see, e.g., Compl. ¶¶ 29, 141-42, 213, 217-19, 222.
Moreover, the Campaign misleadingly describes an event where J.D. Gordon, a Senior
Campaign advisor on policy and national security, diluted proposed language in the Republican
Party Platform that called on the United States to support Ukraine in a dispute with Russia. Letter
at 3. The Report expressly notes that Gordon “felt obliged to object to the proposed platform
[language] and seek its dilution” in light of “Trump’s statements on the campaign trail.” Report at
125.
Finally, while the Special Counsel’s Report could not affirmatively prove why Manafort
and Gates spent months sending internal Campaign polling data and strategies to Kilimnik—in
part because Gates deleted his messages to Kilimnik on a daily basis and in part because Manafort
lied to the Special Counsel about the data—nothing in the report would prevent a civil jury from
adopting the most natural explanation for that data sharing (and the efforts to conceal it): The
Campaign wanted to help Russia gauge the effectiveness of its election interference efforts. See
supra at Section 3 (discussing adverse inference from destruction of evidence).
6.

The Trump Campaign’s Motion is a Transparent and Improper Effort to Litigate the
Merits of this Action

As the foregoing demonstrates, the Campaign’s position that the DNC has violated Rule
11 by failing to “withdraw or even amend its claims” is untenable. Letter at 5. “Rule 11 sanctions
are judged under an objective reasonableness standard and are appropriate only when it is patently
clear that a pleading has no chance of success.” In re Bridge Constr. Servs. of Fla., Inc., 140 F.
Supp. 3d 324, 332 (S.D.N.Y. 2015) (Koeltl, J.) (quoting Shuster v. Oppleman, No. 96cv1689
(JGK), 1999 WL 9845, at *6 (S.D.N.Y. Jan. 11, 1999)). “The imposition of Rule 11 sanctions is
discretionary, and should be reserved for extreme cases.” Cooksey v. Digital, 14cv7146 (JGK),
2016 WL 5108199, at *8 (S.D.N.Y. Sept. 20, 2016) (citation omitted). Given this exacting standard
and the facts at hand, the Campaign’s motion is baseless.
Notably, the Advisory Committee notes on Rule 11 expressly warn that Rule 11 “should
not be employed as a discovery device or to test the legal sufficiency of allegations in the
pleadings . . . . Nor should Rule 11 motions be prepared to emphasize the merits of a party’s
position, . . . to intimidate an adversary into withdrawing contentions that are fairly debatable, [or]
to increase the costs of litigation . . . .” Fed. R. Civ. P. 11, advisory committee’s notes to 1993
amendment. That is precisely the sort of inappropriate conduct in which the Trump Campaign has
engaged here.

June 2, 2019
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7.

Conclusion

Given the manifest deficiencies in the Campaign’s letter, we remind the Campaign that
“the filing of a [Rule 11] motion for sanctions is itself subject to the requirements of the rule and
can lead to sanctions.” Id. Rather than engage in this needless and wholly unfounded litigation
over sanctions, the parties should proceed with the adjudication of the pending motions to dismiss
and, should those motions be denied, embark on discovery and the ultimate trial of this action.
Sincerely,

Joseph M. Sellers