10 December 2015

Legal Schadenfreude: An Epic Pwning of Donald Trump's Lawyer

"Should your client actually be elected Commander-in-Chief, will you be the one writing the cease and desist letters to Vladimir Putin, or will that be handled by outside counsel?" - Counsel for Republican PAC to Counsel for Donald Trump
Law can be fun sometimes, especially if you're willing to indulge in a bit of schadenfreude. And when the schadenfreude is at the expense of one of Donald Trump's cronies, it's doubly sweet.  As I'm sure you know, The Donald has been known to threaten litigation from time to time - particularly when he feels like he's been unjustly maligned. At least a few of the cease and desist letters threatening litigation on behalf of The World's Worst Hairdo have been signed by one Alan Garten, General Counsel to both The Trump Organization (the The itself) and Donald J. Trump. 

It seems that Mr. Garten's most recent experiment in the C&D genre might possibly not have worked out as well as he would have liked. He apparently decided that (1) he had correctly identified the Political Action Committee that funded an attack ad directed at Trump's campaign-trail activity; (2) there is a universe where it would be appropriate for Donald Trump's for-profit business enterprise to send a cease-and-desist letter in an attempt to halt that ad campaign; and (3) that he actually lives in that universe. Sadly for Mr. Garten, none of those things turned out to be true. 

As a result, Mr. Garten sent a cease and desist letter to the wrong organization. This has resulted in a (probably meritorious) Federal Elections Commission complaint against his client, and the publication by the Washington Post of his letter, their reply, and the complaint.  All in all, probably not Mr. Garten's best-ever day at work. 

Let's hit the highlights, shall we? 

Mr. Garten's C&D was sent on Trump Organization letterhead. It was also short, to the point, and clearly the work of a flaming asshole. In reads, in relevant part: 

"It has come to my attention that you plan on producing and disseminating certain [...] advertisements directly and personally attacking my client. Though we believe your decision is fool hearted [sic], please be advised that in the even your ads contain any false, misleading, defamatory, inaccurate, or otherwise tortious statements or representations concerning Mr. Trump, his businesses or his brand, we will not hesitate to seek immediate legal action to prevent such distribution and hold you jointly and severally liable to the fullest extent of the law for any damages resulting therefrom ... and will look forward to doing it. [ellipsis in original]
Please be guided accordingly."
That is seriously the kind of lawyer letter that makes people hate lawyers. It's also aggressive, obnoxious, and utterly classless - in other words, completely consistent with everything the Trump brand stands for.

Apparently, it was not well received. (Go figure.) To begin with, it was sent to the wrong organization. Trump's guy, it seems, directed the letter to the Right to Rise PAC, Inc. Unfortunately, Right to Rise, Inc. is Jeb Bush's leadership PAC, and leadership PACs don't produce ads. The ads are produced by "Super PACs," such as the independent pro-Jeb Bush Right to Rise USA. If you're confused, don't worry. No, actually, do worry - this shows just how confusing and hard to follow the flow of big money into campaigns has become since Citizens United - but know that you're not alone in your confusion. To keep things simple, from here out I'll refer to Right to Rise, Inc. as "Inc." 

Of course, it's one thing for you to be confused about the difference between Inc. and Right to Rise USA. It's another for an experienced corporate counsel to make a mistake like that. It was, as the WaPo put it, a "rookie mistake" on Mr. Garten's part.  Inc's lawyers, Charles Spies and James Tyrrell III, begin by pointing the error out and helpfully (if condescendingly) point Garten to such helpful resources as the FEC website and the Citizens United decision. They then continue:

"[W]e are intrigued (but not surprised) by your continued efforts to silence critics of your client's campaign by employing litigious threats and bullying. Should your client actually be elected Commander-in-Chief, will you be the one writing the cease and desist letters to Vladimir Putin, or will that be handled by outside counsel? As a candidate for President, your client is a public figure and his campaign should, and will, be fact-checked. The ability to criticize a candidate's record, policies and matters of public importance lies at the heart of the First Amendment, as courts have repeatedly recognized. If you have the time between bankruptcy filings and editing reality show contracts, we urge you to flip through the Supreme Court's decision in New York Times v. Sullivan.  If your client is so thin-skinned that he cannot handle his critics' presentation of his own public statements, policies and record to the voting public, and if such communications hurts his feelings, he is welcome to purchase airtime to defend his record. After all, a wall can be built around many things, but not around the First Amendment.  
Lastly, in light of your confusion between Leadership PACs and Super PACs, we have to assume you may also be unaware of the FEC's prohibition on a federal candidate's use of corporate resources for campaign purposes. Although your client may think he is above the law and be accustomed to using lawsuits to bail out his failed business deals, the Federal Election Campaign Act and the FEC's Regulations nonetheless apply to him and his campaign. Perhaps the attached complaint, filed today, will serve as a reminder of your client's legal obligations under federal election laws. Just as your client is attempting to quickly learn the basics of foreign policy, we wish you personally the best in your attempts to learn election law.  
That's not the snarkiest response to a cease-and-desist I've ever seen, but it's up there. In addition to the amusement value, it's noteworthy for a few other reasons. 

First: The Eleventh Commandment has clearly gone out the window, and at a very early stage in the primaries. The letter itself is very negative to begin with, and then there's the fact that it found its way into the hands of the Washington Post. 

Second: There is a good chance that the few remaining "mainstream" Republicans hate Trump even more than the Democrats do. This shows, if nothing else, that they may not be entirely willing to admit their own role in creating the monster that is consuming the GOP. 

Finally: It's extremely likely that the Trump Organization's cease and desist letters are, in addition to being bullying and juvenile attempts at smothering dissent, violations of federal law. There are a number of statutes that could apply, most of which were cited by Inc's counsel in their FEC complaint, but they all go to the same principle: using your for-profit corporation to bully campaign opponents constitutes an illegal contribution of valuable services to a political campaign. 

The Trump Organization appears to think otherwise - they issued a statement claiming that they are just "zealously protect[ing] Mr. Trump's brand." That's not going to fly as an excuse. Setting aside the fact that the biggest threat to the Trump image is Trump, their cease and desist was directed squarely at Trump's political opponents. It will be interesting to see how thoroughly they get smacked down if they try to argue that point to the FEC. It will also be interesting to see how the notoriously thin-skinned Trump and his staff deal with the strengthening opposition from the Republican Old Guard. 

Yup. It's popcorn time. 

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