In March, Donald Trump filed the mother of all LOLsuits, charging Hillary Clinton and half of DC with conspiring to RICO his political and business prospects to death and get him booted off Twitter via “an unthinkable plot – one that shocks the conscience and is an affront to this nation’s democracy.”
The suit, filed in Fort Pierce, in a failed attempt to get Trump appointee Judge Aileen Cannon assigned to the case, alleges a grand conspiracy involving everyone from Democratic lawyers Marc Elias and Michael Sussmann, to National Security Advisor Jake Sullivan, to former FBI Director James Comey, a known “Clinton loyalist.” As of yesterday, Trump added his own former Deputy Attorney General Rod Rosenstein, as well as Rep. Adam Schiff, because oh, what the hell, why not.
Acting in concert, the Defendants maliciously conspired to weave a false narrative that their Republican opponent, Donald J. Trump, was colluding with a hostile foreign sovereignty. The actions taken in furtherance of their scheme—falsifying evidence, deceiving law enforcement, spreading disinformation through the media, and exploiting access to highly-sensitive data sources—are so outrageous, subversive and incendiary that even the events of Watergate pale in comparison
That “hostile foreign sovereignty” would be Russia, for those of you not up to date on your 2016 election conspiracy theories. And if you need a refresher, this complaint is chock full of ’em; it’s the Rosetta Stone of every wingnut fever dream, weaving together the Steele Dossier, the FBI investigation of Russian electoral interference, and the Durham investigation into one totally incoherent narrative.
Why, yes, this case was filed by Alina Habba, the attorney Trump dispatches for performative stunts that the rest of his lawyers are too busy washing their hair to put their names on. She’s teamed up with Trump’s ummm, colorful boarding school roommate from 1964, a divorce and personal injury attorney named Peter Ticktin, who loves Trump and is admitted to the Florida bar.
Believe it or not, there are one or two wee tiny problems with the lawsuit, as the horde of defendants have pointed out in their motions to dismiss this rancid tire fire. To wit: the statute of limitations for civil RICO, injurious falsehood, malicious prosecution, and Stored Communications Act claims has tolled; DNS lookup data is not a “secret,” much less a trade secret, and thus collecting it can’t be “theft of trade secrets” to form the predicate for a civil RICO claim; the Justice Department defendants were allegedly colluding with the civilian defendants to hoodwink themselves into opening an investigation, which makes no goddamn sense; you can’t commit conspiracy with your own attorney; and the “actual malice” standard requires more than shouting “ACTUAL MALICE” over and over again.
But other than that … you’re doing great, sweetie.
The new amended complaint deals with the tolling issue by claiming that the defendants fraudulently concealed their conduct, making numerous “false or misleading statements, often times under oath, in the course of congressional investigations, law enforcement and/or counter-intelligence investigations, and civil or criminal proceedings, all for the purpose of concealing their wrongdoing.”
It also suggest that Trump only learned about it from the recent failed prosecution of attorney Michael Sussmann by Special Counsel John Durham.
Donald J. Trump only recently learned of this information no earlier than September 16, 2021, as these revelations were exposed for the first time in the Sussmann indictment and/or subsequent motions filed by Special Counsel John Durham.
The problem with this argument is that Trump tweeted continuously about the allegations in this POS document during the entirety of 2016 and 2017, which makes it rather more difficult to assert with a straight face that he just found out about the supposedly dastardly plot in September.
The new filing also makes a Cirque du Soleil-worthy stretch, likening the suspension of tolling under the Clayton Antitrust Act to the Durham prosecution, and thus claiming that the Special Counsel prosecution suspended the statute of limitations under civil RICO.
In Agency Holding Corp. v. Malley-Duff & Assoc., 483 U.S. 143 (1987), the Supreme Court noted that “even a cursory comparison of the two statutes reveals that the civil action provision of RICO was patterned after the Clayton Act” and affirmed that the “4-year statute of limitations for Clayton Act actions … [is] the most appropriate limitations period for RICO actions.”291
Accordingly, given the Supreme Court’s adoption of the Clayton Act’s four-year statute of limitations for civil RICO claims, the tolling and suspension provision of the Clayton Act, set forth in 15 U.S.C. § 16(i), likewise applies to civil RICO claims.
Indeed, the amended complaint is substantially identical to the original in every single way, right down to the typos. You would think these esteemed practitioners would realize that “fictious” is not a word, and the adjective for conduct involving a tort is not “torturous.” Particularly since every lawyer on Twitter had a good belly laugh about it.
But you would be wrong!
Trump v. Clinton [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.