Former U.S. President Donald Trump spoke during a campaign rally at Legacy Sports USA on October 9, 2022 in Mesa, Arizona (photo by Mario Tama/Getty Images). Hillary Clinton attended an event on September 10, 2022 in Toronto, Ontario (photo by Amy Sussman/Getty Images).
Attorneys for Hillary Clinton and others have filed their opening reply to Donald Trump’s appeal of his defeated lawsuit alleging she rigged the 2016 election against him — a claim a judge found so “frivolous” and replete with conspiracy theories that he labeled the lawsuit more of a “political manifesto” than a meritorious complaint.
As Law&Crime previously reported, in 2022 Trump sued Clinton, the Democratic National Committee, Rep. Debbie Wasserman Schultz, D-Fla., former FBI Director James Comey, former deputy FBI director Andrew McCabe, and several others, alleging a racketeering (RICO) scheme in which they targeted then-candidate Trump. Trump’s case was dismissed in September and he had sanctions imposed on him of roughly $1 million because the case he brought against Clinton and others should never have been brought to begin with, U.S. District Judge Donald M. Middlebrooks, a Bill Clinton appointee, ruled. The judge found that Trump’s lawsuit was nothing more than “a deliberate attempt to harass” a former political rival and those he perceived as enemies.
In February, Trump asked the appeals court to toss the costly sanctions against him arguing they were inapplicable and that the district court “abused its discretion” because he was never afforded the change to remedy any deficiencies in his claims. Trump’s appeal at length relitigated many of the grievances he had in the case to start, including his contention that the judge handling the case should have been removed.
In Clinton’s joint appeal entered on June 3, her attorney David Kendall zeroed in on this rehashing, pushing back on Trump’s assertions that there was a conflict of interest by the judge, that Trump was inappropriately time-barred from making his complaints and, among many other contentions, that the court wrongfully failed to include what Trump insisted were new allegations made in the controversial and oft-slammed as politically-partisan Durham Report.
On Trump’s reassertion of theories spawned from that report, in the Clinton reply on June 3, it was highlighted that:
Although the Durham Report itself was new, its contents were not. The Report repeated allegations the Special Counsel long ago made public in its speaking indictments of Appellees Michael Sussmann and Igor Danchenko, both of whom were acquitted by unanimous juries in 2022. Although Trump’s amended complaint had already drawn heavily from these indictments — which he alleged “exposed” the ‘full extent of the Defendants’ conspiracy,’ — Trump and his counsel claimed in their motion that the Durham Report ‘seismically alters the legal landscape of this case.’
The district court rejected this assertion and eventually concluded the report did not warrant consideration.
And to that point, the Clinton brief states that Trump did not identify on appeal any aspect of the Durham Report that would warrant a different result on any of his motions to dismiss, either. Even assuming the Durham Report were part of the proper record on appeal, it does nothing to support his claims of a RICO enterprise.
For example, according to Trump, the Durham Report “discusses” business relationships the Clinton 2016 campaign had where he said she hired outside counsel at Perkins Coie who hired Fusion GPS to conduct opposition research on Trump. But even if accepting these “extra-record allegations as true, Trump fails to explain how engaging third parties to perform garden-variety campaign activity could possibly add up to an illegal RICO enterprise,” the Clinton brief states.
As to conflict of interest claims made by the former president about the judge, had he “truly been concerned” with this then he could have filed suit to preserve his rights and then requested a stay.
“Instead, he tweeted vociferously about the same investigations at issue in this lawsuit, while sitting on his rights to file suit,” attorney Kendall wrote.
When the district court ruled Trump’s RICO and injurious falsehood claims were untimely, he failed to consider that “own allegations confirmed he was on notice of his claims no later than October 2017, meaning that his claims were time-barred when he filed his initial complaint on March 24, 2022.”
“While Trump doesn’t dispute this, he argues that he is entitled to equitable tolling for his entire presidency and also that he is entitled to statutory tolling under a Clayton Act provision never before applied in RICO cases,” Kendall wrote.
But, he continued, neither Congress nor the Supreme Court have incorporated into RICO the Clayton Act’s special tolling provision which is triggered when the United States ‘institute[s] any ‘civil or criminal proceeding … to prevent, restraint or punish violations of any of the antitrust laws.” [Emphasis original]
Indeed, the Supreme Court itself has warned that the Clayton’s Act general four-year-statute of limitations ‘does not necessarily provide all the answers’ for applying RICO’s statute of limitations.”
“The RICO statute itself contains no comparable tolling provision,” the brief argues.
Effectively, Trump wants it both ways, the brief argues: He wants the court to both incorporate Clayton Act tolling into the RICO provisions, and also “revise it to apply whenever there is a parallel proceeding to ‘prevent, restraint, or punish violations of any of the racketeering laws.’” [Emphasis original]
If the appeals court were to side with him on this tolling issue, it would mean the court would have to reconfigure the law under RICO in a way that Congress itself has already declined to enact, rewrite the “imported” provision and then, “misapply the invented law,” the brief says.
At bottom, Trump has failed to assert a RICO claim anyway and found no foundations to root his claim that Clinton or the others he has sued engaged in a RICO enterprise. He alleged “numerous facts” showing an illegal ruse, but never describes them, the Clinton filing says.
Further, the filing underlines, groups associated for legitimate purposes, like political campaigns or their agents, do not constitute RICO enterprises:
Here, the alleged RICO enterprise consists of Clinton and her campaign, the DNC, their former outside counsel and others who allegedly performed work for the campaign. Far from pursuing unlawful ends, these defendants shared a purpose that was wholly legitimate: advocating the election of Clinton, the Democratic candidate, to the presidency.
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