Democratic National Committee v. The Russian Federation et al

Filing 261

MEMORANDUM OF LAW in Opposition re: 256 MOTION for Sanctions . . Document filed by Democratic National Committee. (Sellers, Joseph)

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
DEMOCRATIC NATIONAL COMMITTEE,

)
)
) Civil Action No. 1:18-cv-03501-JGK
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE RUSSIAN FEDERATION et al.,
Defendants.

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT
DONALD J. TRUMP FOR PRESIDENT, INC.’S MOTION FOR RULE 11 SANCTIONS

i

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 2 of 20

TABLE OF CONTENTS

I. 

Introduction ......................................................................................................................... 1 

II. 

Facts .................................................................................................................................... 2 

III. 

Standard of Review on a Motion Under Fed. R. Civ. P. 11................................................ 5 

IV. 

Argument ............................................................................................................................ 6 
A. 
The Campaign’s Motion Rests on a Logical Error ................................................. 6 
B. 
The Motion Overlooks the Differences Between Civil and Criminal
Actions .................................................................................................................... 7 
C. 
The Campaign Ignores the Fact that Additional Information Continues to
Come to Light ....................................................................................................... 10 
D. 
The Campaign’s Motion Misconstrues Specific Events Discussed in the
Report.................................................................................................................... 11 
E. 
The Campaign Continues to Misconstrue and Dismember the Allegations
in the Complaint .................................................................................................... 14 

V. 

Conclusion ........................................................................................................................ 15 

ii

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 3 of 20

TABLE OF AUTHORITIES
Page(s)
CASES
Boca Raton Firefighters & Police Pension Fund v. Bahash,
506 F. App’x 32 (2d Cir. 2012) .................................................................................................2
In re Bridge Constr. Servs. of Fla., Inc.,
140 F. Supp. 3d 324 (S.D.N.Y. 2015) (Koeltl, J.) .................................................................5, 6
Cont’l Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. 690 (1962) .................................................................................................................14
Cooksey v. Digital,
14cv7146, 2016 WL 5108199 (S.D.N.Y. Sept. 20, 2016) .........................................................5
In re: Credit Default Swaps Antitrust Litig.,
No. 13-md-02476, 2016 WL 2731524 (S.D.N.Y. Apr. 26, 2016) .............................................9
Galin v. Hamada,
283 F. Supp. 3d 189 (S.D.N.Y. 2017)........................................................................................6
Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc.,
146 F.3d 66 (2d Cir. 1998).........................................................................................................2
Mitchell v. United States,
526 U.S. 314 (1999) ...................................................................................................................8
Purdy v. Zeldes,
337 F.3d 253 (2d Cir. 2003).......................................................................................................7
Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479 (1985) ...................................................................................................................7
Shuster v. Oppleman,
No. 96cv1689 (JGK), 1999 WL 9845 (S.D.N.Y. Jan. 11, 1999) ...............................................5
Standefer v. United States,
447 U.S. 10 (1980) .....................................................................................................................8
United States v. Ianniello,
646 F. Supp. 1289 (S.D.N.Y. 1986)...........................................................................................9
United States v. Papadopoulos,
No. 17-cr-00182-RDM (D.D.C. Oct. 5, 2017).........................................................................12
iii

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 4 of 20

In re: Urethane Antitrust Litig.,
No. 04-1616, 2013 WL 3879264 (D. Kan. July 26, 2013) ........................................................9
Warren v. Byrne,
699 F.2d 95 (2d Cir. 1983).........................................................................................................9
Woods v. START Treatment & Recovery Ctrs., Inc.,
864 F.3d 158 (2d Cir. 2017).......................................................................................................8
OTHER AUTHORITIES
2A Charles Wright et al., Federal Practice & Procedure § 468 (4th ed. 2013)..............................7
Fed. R. Civ. P. 11 ................................................................................................................... passim
Fed. R. Civ. P. 37 .............................................................................................................................8
Karoun Demirjian et al., Donald Trump Jr. agrees to testify before the Senate
Intelligence Committee again, Wash. Post (May 14, 2019) ....................................................11
2 Kenneth S. Broun et al., McCormick on Evidence § 265 (7th ed. 2016) ....................................14
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 .......................10

iv

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 5 of 20

Plaintiff Democratic National Committee (“Plaintiff” or “DNC”) hereby submits this
Memorandum of Law in Opposition to Defendant Donald J. Trump for President, Inc.’s (the
“Trump Campaign” or the “Campaign”) Motion for Rule 11 Sanctions (“Motion for Sanctions” or
“Motion”) (ECF No. 257).
I.

INTRODUCTION
Contrary to the Trump Campaign’s suggestion, the Special Counsel’s Report did not

“refute” the DNC’s claim that the Campaign conspired with Russia. Rather, the Report
methodically compiled evidence that the Campaign participated in Russia’s plan to interfere in the
2016 election. Over the course of more than 100 pages, the Report identified “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[s].” Report at 173.1 While the Special Counsel ultimately could not establish
the Campaign’s participation in a conspiracy beyond a reasonable doubt in a criminal proceeding,
the Report’s findings provide ample support for this civil lawsuit, where the DNC only has to
prove that it is more likely than not that the Campaign conspired with Russia.
In arguing to the contrary, the Trump Campaign commits a logical error, falsely equating
the Special Counsel’s statement that he could not “establish” the Trump Campaign’s guilt beyond
a reasonable doubt with the very different (and unlikely) statement that the Trump Campaign is
innocent of all wrongdoing. The Special Counsel’s Report warned the public not to make this
mistake, noting: “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). Indeed, the Special Counsel

1

Unless otherwise specified, citations to pages of the Report refer to Volume I of the Report.

1

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 6 of 20

reiterated in a televised press conference last month that a decision not to prosecute should not be
confused with an exoneration. Yet that is precisely what the Trump Campaign does in its Motion.
The Campaign’s Motion also ignores fact-gathering tools that are available to civil
plaintiffs like the DNC but not to prosecutors like the Special Counsel, dismisses ongoing
investigations into the Trump Campaign’s interactions with Russian agents and WikiLeaks,
misleadingly describes key events discussed in the Special Counsel’s Report, and improperly reads
allegations from the DNC’s Second Amended Complaint out of context.
In sum, the Trump Campaign has blustered past the bounds of law and logic. The Court
should deny the Campaign’s Motion in its entirety.2
II.

FACTS
Contrary to the Trump Campaign’s insistence that the Special Counsel’s Report

“definitively refuted” Plaintiff’s Second Amended Complaint (“Complaint”), Mot. at 1, the Report
confirmed the central allegations in the Complaint and presented additional evidence that the
Trump Campaign agreed to a plan in which Russia would steal and disseminate documents from
Democratic targets, including the DNC. Among other findings too numerous to list here, the
Report stated that:


2

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

Likewise, the Court should reject the Campaign’s argument that the Report is subject to judicial notice. Compare,

e.g., Campaign Reply (ECF No. 254) at 1, 3, 15-16, 20, 23, 25 with Pl.’s Opp. to Mot. to Dismiss at 15; see also Int’l
Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70-71 (2d Cir. 1998) (testimony or findings
from one case (such as the Special Counsel’s criminal inquiry) are not judicially noticeable in another case (such as
the DNC’s civil suit)); Boca Raton Firefighters & Police Pension Fund v. Bahash, 506 F. App’x 32, 37 n.4 (2d Cir.
2012).

2

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 7 of 20

links included Russian offers of assistance to the Campaign. In some instances, the
Campaign was receptive [to] the offer[.]” Report at 173; cf. Compl. ¶¶ 2, 10.


In April 2016, Josef Mifsud (a London-based academic with ties to the Russian
government) told George 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.
Papadopoulos later “wavered about whether he accurately remembered an
incident” where he told Sam Clovis (the Trump Campaign’s National Co-Chair)
that he thought the Russians “have her emails.” Report at 93; cf. Compl. ¶¶ 96-99.
Compare generally Report at 86-93 with Compl. ¶¶ 93-100.



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.



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 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
3

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 8 of 20

“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 collect the emails he asked Russia to steal.
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.

While the Report ultimately did not “establish that members of the Trump Campaign
conspired or coordinated with the Russian government in its election interference activities,” it
cautioned that “[a] statement that the investigation did not establish particular facts does not mean
there was no evidence of those facts.” Report at 2. The Report also noted some of the constraints
that limited the Special Counsel’s ability to establish certain facts beyond a reasonable doubt. For
example, the Report noted that “[s]ome individuals invoked their Fifth Amendment right against
compelled self-incrimination,” while others (such as the Agalarovs) declined to be interviewed.
Report at 10. At the same time, “some of the individuals [the Special Counsel] interviewed or
whose conduct [the Special Counsel] investigated—including some associated with the Trump
Campaign—deleted relevant communications[.]” Id. As will be explained further below, the DNC
will face fewer investigative barriers. See § IV(B), infra.

4

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 9 of 20

III.

STANDARD OF REVIEW ON A MOTION UNDER FED. R. CIV. P. 11
In relevant part, Rule 11 of the Federal Rules of Civil Procedure provides that, in

“presenting to the court a pleading, written motion, or other paper . . . an attorney . . . certifies that
to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances,” “the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery[.]” Fed. R. Civ. P. 11(b)(3). “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).
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 notes
to 1993 amendment. Further, “the filing of a [Rule 11] motion for sanctions is itself subject to the
requirements of the rule and can lead to sanctions,” and “the court may award to the person who
prevails on a motion under Rule 11—whether the movant or the target of the motion—reasonable
expenses, including attorney’s fees, incurred in presenting or opposing the motion.” Id.; see Fed.
R. Civ. P. 11(c)(2).

5

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 10 of 20

IV.

ARGUMENT
The Trump Campaign’s Motion is a flawed attempt to shield the Campaign from the

uncomfortable reality that the DNC’s case has far more than the slight chance of success required
by Rule 11. See In re Bridge Constr. Servs. of Fla., Inc., 140 F. Supp. 3d at 332. The Motion turns
on a serious logical error; overlooks the differences between criminal and civil cases; ignores the
fact that additional information, currently shielded by redactions in the Report or within the
custody of witnesses never interviewed, could become part of the record in this action; and
misconstrues key passages of both the Report and the DNC’s Complaint.
A.

The Campaign’s Motion Rests on a Logical Error

The Trump Campaign’s Motion rests on a logical error: It falsely suggests that, because
the Special Counsel could not prove a conspiracy between Russia and the Trump Campaign
beyond a reasonable doubt, the Campaign must be innocent. That suggestion blinks common
sense. It is not unusual for the government to compile substantial evidence that a suspect
committed a crime without being able to prove the suspect guilty beyond a reasonable doubt. This
case is no exception. As detailed above, the Special Counsel amassed considerable evidence that
the Trump Campaign conspired with Russia, but that “evidence was not sufficient to charge” the
Campaign in a criminal proceeding. Report, Volume II at 15 n.8. As explained more fully below,
however, the evidence is sufficient to hold the Trump Campaign liable in a civil lawsuit.3 See
§ IV(B), infra.

3

This case is therefore distinguishable from the cases that the Trump Campaign cites, such as Galin v. Hamada, 283

F. Supp. 3d 189 (S.D.N.Y. 2017), where the plaintiff (unlike the DNC) was given the chance to conduct his own
discovery, and that discovery “yielded no admissible evidence whatsoever” to support his claims. Id. at 202 (emphasis
added).

6

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 11 of 20

The Trump Campaign was warned—both by the Special Counsel and the DNC—not to
construe the Special Counsel’s statement that his investigation “did not establish” a conspiracy as
an exoneration. The Special Counsel noted—on page 2 of the Report—that “[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). And just two days before the Trump Campaign filed the pending
Motion for Sanctions, the DNC sent the Campaign a letter explaining how the Special Counsel’s
Report bolsters the DNC’s claims. June 2, 2019 Letter, ECF No. 257-3. Failing to heed these
warnings, the Trump Campaign proceeded with its ill-founded Motion.
B.

The Motion Overlooks the Differences Between Civil and Criminal Actions

In claiming that the Special Counsel’s criminal investigation bars this civil case, the Trump
Campaign ignores the fundamental differences in the burdens of proof that must be satisfied in
criminal and civil proceedings and the different evidence available to criminal and civil lawyers.
See 2A Charles Wright et al., Federal Practice & Procedure § 468 (4th ed. 2013) (explaining that,
in light of these differences, an “acquittal in [a] criminal action does not bar civil suit based on the
same facts”); see also Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003).
First, the burden of proof in a civil action is decisively 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 information 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.
This seems particularly likely because a central question before both the Special Counsel
and this Court is whether the Trump Campaign conspired with Russia, i.e., whether members of
7

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 12 of 20

the Trump Campaign had a “meeting of the minds” with Russian agents.4 As the Special Counsel
suggested in explaining his decision not to charge individuals involved in the June 9, 2016 Trump
Tower meeting, it is extremely difficult to prove someone’s mental state beyond a reasonable
doubt. See Report at 185 (discussing “the government’s substantial burden of proof on issues of
intent[.]”). Consequently, it would have been particularly difficult for the Special Counsel to prove
beyond a reasonable doubt that the Trump Campaign had a meeting of the minds with Russia. The
DNC does not face that same difficulty; as explained above, the DNC only needs to show that it
was more likely than not that such a meeting of the minds occurred.
Furthermore, a civil plaintiff like the DNC can pursue evidentiary avenues unavailable to
prosecutors like the Special Counsel. See Standefer v. United States, 447 U.S. 10, 22 (1980) (noting
that prosecutors’ investigatory powers “are limited, both by rules of court and constitutional
privileges”); id. at 23 (noting that prosecutors may be hindered by “rules of evidence and exclusion
unique to our criminal law”). For example, unlike in a criminal proceeding, where a defendant has
no obligation to speak to government investigators or testify in court, 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., Mitchell v. United States, 526 U.S. 314, 328 (1999); Woods v. START Treatment &
Recovery Ctrs., Inc., 864 F.3d 158, 170 (2d Cir. 2017). Because the consequences of refusing to
testify in a civil case can be so severe, the DNC may be able to elicit relevant testimony from some
of the Defendants who declined to speak with the Special Counsel, including Trump Jr., Assange,

4

While many of Plaintiff’s claims turn on the existence of a conspiracy, not all of them do. See generally Complaint.

8

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 13 of 20

and the Agalarovs. Moreover, if any agent of the Trump Campaign declines to testify, that decision
might allow a jury to draw an adverse inference against the Trump Campaign at trial.
This case is therefore analogous to United States v. Ianniello, 646 F. Supp. 1289 (S.D.N.Y.
1986), where the government brought a civil RICO claim against a defendant who had been
acquitted in a related criminal case. In rejecting the defendant’s argument that the doctrine of
collateral estoppel barred the civil action, the court emphasized the “differing standards of proof
in criminal and civil proceedings,” and noted that the government would be able to “call a key
witness” who refused to testify in the criminal case; if the witness “invoke[d] his Fifth Amendment
privilege to remain silent,” the government could ask a jury “to draw an adverse inference from
the assertion of that privilege[.]” Id. at 1291. The court concluded that, regardless of whether the
witness chose to testify or to invoke his Fifth Amendment privilege, calling him to testify would
create “significant evidence unavailable . . . in the criminal case.” Id.; see also Warren v. Byrne,
699 F.2d 95, 97 (2d Cir. 1983) (dismissal of charges in a criminal case “was not determinative of
the issues” in a civil action because “the rules of law and burdens of proof” in civil proceedings
are “substantially different”).
In light of the robust case law permitting plaintiffs to sue defendants who escape criminal
conviction, civil plaintiffs routinely hold defendants liable for misconduct after the government
finds insufficient evidence to warrant criminal prosecution. See, e.g., In re: Credit Default Swaps
Antitrust Litig., No. 13-md-02476, 2016 WL 2731524, at *2 (S.D.N.Y. Apr. 26, 2016) (after the
Department of Justice closed its investigation into an antitrust conspiracy, civil plaintiffs sued the
conspirators and recovered $1.865 billion); In re: Urethane Antitrust Litig., No. 04-1616, 2013
WL 3879264, at *2 (D. Kan. July 26, 2013) (after the Department of Justice closed its investigation

9

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 14 of 20

into an antitrust conspiracy, civil plaintiffs took the conspirators to trial and secured a judgment of
$1.06 billion).
C.

The Campaign Ignores the Fact that Additional Information Continues to
Come to Light

The Trump Campaign also fails to recognize the substantial information cited in the Special
Counsel’s Report, likely pertinent to this action, that is currently redacted but may be disclosed at
a later date. Many of the Report’s redactions appear to relate to the interactions among the Trump
Campaign, Stone, Assange, and WikiLeaks during the 2016 election. See, e.g., Report at 51-59,
176-180, 188-191, 196-97. These facts are central to Plaintiff’s Complaint. See, e.g., Compl. ¶¶ 8183, 149-65, 170-76. Because the basis cited for these redactions is “Harm to Ongoing Matter,” it
is likely that the redactions will be removed as the relevant criminal matters are resolved, revealing
additional information that could bolster the DNC’s already strongly supported claims.
Similarly, the Trump Campaign ignores ongoing congressional investigations from which
evidence relevant to this action may emerge. Both 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.5 Likewise, the Senate Intelligence
Committee recently secured an agreement for Trump, Jr. to testify about his participation in the

5

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=6
38.

10

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 15 of 20

Trump Tower meeting, among other topics.6 Not only are these ongoing investigations likely to
reveal additional evidence pertinent to this action, but the very fact that these congressional bodies
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. Mot. at 1.
D.

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

Moreover, the Campaign’s Motion presents a deeply misleading picture of specific events
discussed in the Report. For example, the Motion falsely contends that the Campaign could not
have “conspired or coordinated with Russia through Papadopoulos” because the Special Counsel
could not conclusively establish that Papadopoulos told other members of the Campaign about his
interactions with Mifsud. Mot. at 6. But Papadopoulos himself was an employee of the Campaign.
Thus, even if Papadopoulos forged an agreement with Russian agents on his own, the Campaign
could be held liable for that misconduct. In any event, 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. This “waver[ing]” is not surprising; at other points in
his conversations with the Special Counsel’s Office, Papadopoulos claimed not to remember
incriminating interactions with individuals connected to the Russian Government. For instance, he
denied any recollection of an incident where Sergei Millian, who told Papadopoulos that he had
“insider knowledge and direct access to the top hierarchy in Russian politics,” sent “a Facebook

6

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/national-security/donald-trump-jr-agrees-to-testifybefore-the-senate-intelligence-committee-again/2019/05/14/2efd4574-7686-11e9-bd25c989555e7766_story.html?utm_term=.eef8d1b7e644.

11

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 16 of 20

message to Papadopoulos promising that he would ‘share . . . a disruptive technology that might
be instrumental in [Papadopoulos’s] political work for the campaign.’” Id. at 94-95. Moreover,
Papadopoulos has admitted that he destroyed documentary evidence to conceal his suspicious
interactions with Russian agents.7 A jury could infer that Papadopoulos destroyed these documents
in part because he wanted to hide the fact that he passed information between Russian agents and
other members of the Trump Campaign. See infra at 13-14.
Similarly, the Campaign’s Motion 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 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 information that Russia believed to be related to the Clinton Campaign, and Kushner
“became aggravated” that the information was not more incriminating. Id. This admission strongly
supports the DNC’s contention that members of the Campaign gave Russian agents feedback about
the type of information they wanted Russian agents to gather and disseminate. A civil jury could
readily infer that, after Kushner fumed that the first evidence Russia presented was not sufficiently
helpful to the Trump Campaign, the Russian agents presented information about their ongoing
efforts to steal Democratic documents. This inference would be reasonable given that: (1) the day

7

Statement of the Offense at ¶¶ 33-34, United States v. Papadopoulos, No. 17-cr-00182-RDM (D.D.C. Oct. 5, 2017).

12

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 17 of 20

after the meeting, Russia attempted to hack into a DNC backup server, Compl. ¶ 143; (2) less than
a week after the Trump Tower meeting, Russia started disseminating stolen Democratic materials,
Report at 42; Compl. ¶ 148; (3) 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; (4) Manafort regularly
gave a Russian agent internal Trump Campaign polling data, which would have allowed Russia to
gauge the effectiveness of its document disseminations, Compl. ¶¶ 26, 91; and (5) other members
of the Trump Campaign, as well as informal Campaign advisors like Stone, maintained suspicious
contacts with Russian agents and WikiLeaks, see, e.g., Compl. ¶¶ 89-100, 159-179.
Furthermore, 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. 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” about improved relations
with Russia. Report at 125.
Moreover, 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 understand the effectiveness of its election interference efforts.
Finally, the Special Counsel’s Report did not foreclose the finding that Defendants may
have destroyed evidence or obstructed official proceedings to conceal their own illegal activity.
Nor could it: Under the federal rules of evidence, “an obstruction of justice is . . . commonly

13

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 18 of 20

regarded as an admission by conduct.” 2 Kenneth S. Broun et al., McCormick on Evidence § 265
(7th ed. 2016). It is therefore permissible to infer that a suspect obstructed justice to conceal a
crime, even if the inference is not strong enough to prove the suspect guilty beyond a reasonable
doubt.
E.

The Campaign Continues to Misconstrue and Dismember the Allegations in
the Complaint

The Campaign’s Motion for Sanctions also ignores the Supreme Court’s admonition that
the “character and effect of a conspiracy are not to be judged by dismembering it and viewing its
separate parts, but only by looking at it as a whole.” Cont’l Ore Co. v. Union Carbide & Carbon
Corp., 370 U.S. 690, 699 (1962). Like its Motion to Dismiss, the Campaign’s current Motion
impermissibly picks a few allegations out of the Complaint, misconstrues them, and then asserts
that the allegations are insufficient to support the DNC’s claims. For example, the Motion
repeatedly asserts that there are just two “pillars” supporting the DNC’s case: allegations about
Papadopoulos’s interactions with Mifsud and allegations about the Trump Tower meeting. Then,
as explained above, the Campaign warps the Special Counsel’s description of those events to suit
its own narrative. But the DNC’s Complaint does not rest on two “pillars”; it rests on a densely
woven net of evidence, including (but not limited to): Felix Sater’s statement that Trump could
“become President of the USA and we can engineer it. I will get all of Putins [sic] team to buy in
on this, I will”, Compl. ¶ 9; dozens of secret communications between members of the Trump
Campaign, Russian operatives, and WikiLeaks, see, e.g., Compl. ¶¶ 89-100, 135-140, 152, 159179; Russian hacking activity that occurred immediately after those communications see, e.g.,
Comp. ¶¶ 121, 143; Trump’s open request for Russia to find Secretary Clinton’s emails, followed
by Russia’s attempt to do so, Compl. ¶ 158; Roger Stone, an informal advisor to the Trump
Campaign, telling Russian spies that a stolen Democratic turnout model for the 2016 election was

14

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 19 of 20

“[p]retty standard,” followed by Russia’s intrusion into one of the computer servers that the DNC
used to perform complex analysis of turnout data, Compl. ¶¶ 179-180; senior Trump Campaign
members sharing Campaign polling data with a Russian intelligence agent, Compl. ¶¶ 26, 91;
Stone’s advanced knowledge that WikiLeaks would publish documents that Russia stole, Compl.
¶¶ 161-165, 170, 172, 174; and multiple Campaign members obstructing inquiries into their
interactions with Russian agents and WikiLeaks, Compl. ¶¶ 211-231. Considered as a whole, the
allegations in the Complaint are more than sufficient to satisfy the requirements of Rule 11 and
survive the pending motions to dismiss.
V.

CONCLUSION
For the foregoing reasons, the Court should deny the Motion for Sanctions in its entirety.

June 18, 2019

Respectfully submitted,
/s/ Joseph M. Sellers
Joseph M. Sellers
Geoffrey A. Graber
Julia A. Horwitz
Alison S. Deich
Eric S. Berelovich
Cohen Milstein Sellers & Toll PLLC
1100 New York Ave. NW ● Fifth Floor
Washington, DC 20005
[phone]

Michael Eisenkraft
Cohen Milstein Sellers & Toll PLLC
88 Pine St.
14th Floor
New York, NY 10005
[phone]
[e-mail]

[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiff

15

Case 1:18-cv-03501-JGK Document 261 Filed 06/18/19 Page 20 of 20

CERTIFICATE OF COMPLIANCE
I, Joseph M. Sellers, certify that this memorandum of law complies with Rule 2.D. of the
Individual Practices of Judge John G. Koeltl because it contains 4,838 words and complies with
the Court’s formatting rules.
Dated: June 18, 2019
Washington, D.C.
/s/ Joseph M. Sellers
Joseph M. Sellers
Attorney for Plaintiff