Order on Sanctions ["Donald J. Trump and Plaintiff’s lead attorney—Alina Habba and Habba Madaio & Associates—are jointly and severally liable for $937,989.39.38"]
Donald J. Trump vs. Hillary R. Clinton
U.S. District Court So. Dist. of Fla., Case No. 22-14102-CV-MIDDLEBROOKS
by Donald M. Middlebrooks, United States District Judge
January 19, 2023.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE No. 22-14102-CV-MIDDLEBROOKS
DONALD J. TRUMP,
Plaintiff,
v.
HILLARY R. CLINTON, et al.,
Defendants.
_________________________________________/
ORDER ON SANCTIONS
This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim.
Thirty-one individuals and entities were needlessly harmed in order to dishonestly advance a political narrative. A continuing pattern of misuse of the courts by Mr. Trump and his lawyers undermines the rule of law, portrays judges as partisans, and diverts resources from those who have suffered actual legal harm.
I previously granted Defendant Charles Dolan’s motion for sanctions, brought pursuant to Federal Rule of Civil Procedure 11. (DE 284). Now before me is a motion seeking sanctions brought by eighteen other Defendants. Upon consideration of the Motion (DE 280), Response (DE 285) and Reply (DE 287), for the reasons that follow and also for those stated in my previous Order, sanctions are awarded.
I. BACKGROUND
Plaintiff initiated this lawsuit on March 24, 2022, alleging that “the Defendants, blinded by political ambition, orchestrated a malicious conspiracy to disseminate patently false and injurious information about Donald J. Trump and his campaign, all in the hope of destroying his life, his political career, and rigging the 2016 Presidential Election in favor of Hillary Clinton.” (DE 1 ¶ 9).
The next day, Alina Habba, Mr. Trump’s lead counsel told Fox News’ Sean Hannity:
You can’t make this up. You literally cannot make a story like this up . . . and President Trump is just not going to take it anymore. If you are going to make up lies, if you are going to try to take him down, he is going to fight you back. And that is what this is, this is the beginning of all that.1
She then explained on Newsmax:
What the real goal [of the suit] is, is democracy, is continuing to make sure that our elections, continuing to make sure our justice system is not obstructed by political enemies. That cannot happen. And that’s exactly what happened. They obstructed justice. They continued the false narrative . . . This grand scheme, that you could not make up, to take down an opponent. That is un-American.2
On April 20, 2022, less than a month after the Complaint was filed, Hillary Clinton moved for dismissal with prejudice. Her motion identified substantial and fundamental factual and legal flaws. Each of the other Defendants followed suit, pointing to specific problems with the claims against them. The problems in the Complaint were obvious from the start. They were identified by the Defendants not once but twice, and Mr. Trump persisted anyway.
Despite this briefing and the promise “to cure any deficiencies,” Plaintiff’s counsel filed the Amended Complaint on June 21, 2022. (DE 177). The Amended Complaint failed to cure any of the defects. See DE 267, Order of Dismissal (September 8, 2022). Instead, Plaintiff added eighty new pages of largely irrelevant allegations that did nothing to salvage the legal sufficiency of his claims. (DE 267 at 64). The Amended Complaint is 193 pages in length, with 819 numbered paragraphs, and contains 14 counts, names 31 defendants, 10 John Does described as fictitious and unknown persons, and 10 ABC Corporations identified as fictitious and unknown entities.
On July 14, 2022, the United States moved pursuant to the Westfall Act, 28 U.S.C. § 2679 (d)(i), to substitute itself as Defendant for James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Kevin Clinesmith. (DE 224). On July 21, 2022, I granted the motion to substitute. (DE 234).
On September 8, 2022, I dismissed the case with prejudice as to all Defendants except for the United States.3 I issued a detailed and lengthy Order, which I incorporate by reference here. (DE 267). I found that fatal substantive defects which had been clearly laid out in the first round of briefing, precluded the Plaintiff from proceeding under any of the theories presented. I found that the Amended Complaint was a quintessential shotgun pleading, that its claims were foreclosed by existing precedent, and its factual allegations were undermined and contradicted by the public reports and filings upon which it purported to rely. I reserved jurisdiction to adjudicate issues pertaining to sanctions.
Undeterred by my Order and two rounds of briefing by multiple defendants, Ms. Habba continued to advance Plaintiff’s claims. In a September 10, 2022, interview with Sean Hannity, the host asked her “Why isn’t [Hillary Clinton] being held accountable for what she did?” Ms. Habba’s response reiterated misrepresentations on which this lawsuit was based:
Because when you have a Clinton judge as we did here, Judge Middlebrooks who I had asked to recuse himself but insisted that he didn’t need to, he was going to be impartial, and then proceeds to write a 65-page scathing order where he basically ignored every factual basis which was backed up by indictments, by investigations, the Mueller report, et cetera, et cetera, et cetera, not to mention Durham, and all the testimony we heard there, we get dismissed. Not only do we get dismissed, he says that this is not the proper place for recourse for Donald Trump. He has no legal ramifications. Where what [sic] is the proper place for him? Because the FBI won’t help when you can do anything, obstruct justice, blatantly lie to the FBI, Sussmann’s out, he gets acquitted, where do you go? That’s the concern for me, where do you get that -- that recourse?4
She also indicated that, while Mr. Trump doubted the suit would succeed, she nevertheless “fought” to pursue it:
You know, I have to share with you a story, Sean, that I have not shared with anybody. The recourse that I have at this point is obviously to appeal this to the 11th Circuit as Gregg said. But when I brought this case and we were assigned you know, this judge and we went through the recusal process, we lost five magistrates, including Reinhart [sic] who’s dealing with the boxes as we know. The former president looked at me and he told me, you know what Alina. You’re not going to win. You can’t win, just get rid of it, don’t do the case. And I said, no, we have to fight. It’s not right what happened. And you know, he was right, and it’s a sad day for me personally because I fought him on [it] and I should have listened, but I don’t want to lose hope in our system. I don’t. So, you know I’m deciding whether we’re going to appeal it.5
Defendants now move to recover attorneys’ fees and costs under Fed. R. Civ. P. 11, 28 U.S.C. § 1927, the Defend Trade Secrets Act, and/or this Court’s inherent power. (DE 280 at 1). In Part II, I find that a sanction under this Court’s inherent power is appropriate. I do so by examining Plaintiff’s (and his lawyers’) conduct throughout this litigation. In Part III, I look to Plaintiff’s conduct in other cases. And in Part IV, I determine the reasonableness of Defendants’ attorneys’ fees and costs.
II. ANALYSIS OF LITIGATION CONDUCT IN THIS CASE
“‘[T]ampering with the administration of justice . . . involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public.’” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citation omitted). A court’s inherent power includes the ability to assess attorneys’ fees and costs against the client, the attorney or both when either has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. at 45-46.
The “inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct.” Chambers, 501 U.S. at 46. “[ I]f in the informed discretion of the Court, neither the statute nor the Rules are up to the task,” the Court may safely rely on its inherent power “to sanction bad faith conduct in the course of litigation.” Id. at 50; see also Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir 2010).
“The key to unlocking a court’s inherent power is a finding of bad faith.” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (citations omitted).
“The inherent-powers standard is a subjective bad faith standard.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017). However, absent direct evidence of subjective bad faith, this standard can also be met if an attorney’s conduct is “tantamount to bad faith,” meaning the “attorney’s conduct is so egregious that it could only be committed in bad faith.” Id. at 1224–25 (citing Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980)). An attorney’s conduct is “tantamount to bad faith” if he “recklessly raises a frivolous argument.” Id. at 1225 (quoting Barnes, 158 F.3d at 1214). “Recklessness alone does not satisfy the inherent powers standard,” but “recklessness plus a frivolous argument suffice.” Id.
The inherent power “is both broader and narrower than other means of imposing sanctions.” Peer, 606 F.3d at 1314 (quoting Chambers, 501 U.S. at 46). It is broader in the sense that while other sanction mechanisms only reach certain individuals or conduct, the inherent power extends to the full range of litigation abuses. Id.
In my informed discretion, I find that Rule 11, 28 U.S.C. § 1927, and the Defend Trade Secrets Act are not “up to the task” of confronting the litigation abuse involved here. Rule 11 is backward looking, limited to pleading and motion abuse, and experience has shown it to be ineffective at deterrence. See Fed. R. Civ. P. 11, Advisory Committee Notes. Section 1927 “only applies to unnecessary filings after the lawsuit has begun.” Macort v. Prem Inc., 208 F. App’x 781, 786 (11th Cir. 2006). And the Defend Trade Secrets Act may only provide limited relief. The purpose of the inherent power to sanction a party is to vindicate judicial authority without resorting to contempt of court and to make the non-violating party whole. See Chambers, 501 U.S. at 45-46; see also Purchasing Power, LLC, 851 F.3d at 1223.
Here, we are confronted with a lawsuit that should never have been filed, which was completely frivolous, both factually and legally, and which was brought in bad faith for an improper purpose. Mr. Trump is a prolific and sophisticated litigant who is repeatedly using the courts to seek revenge on political adversaries. He is the mastermind of strategic abuse of the judicial process, and he cannot be seen as a litigant blindly following the advice of a lawyer. He knew full well the impact of his actions. See Byrne, 261 F.3d at 1121. As such, I find that sanctions should be imposed upon Mr. Trump and his lead counsel, Ms. Habba.
A. The Case Was Initiated By A Shotgun Pleading Designed To Serve A Political Purpose.
The deliberate use of a shotgun pleading is an abusive litigation tactic which amounts to obstruction of justice. See Davis v. Coca Cola Bottling Co. Consol., 516 F.3d 955, 982 n.66 (11th Cir. 2008), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). This case involved three categories of shotgun pleadings condemned by the Eleventh Circuit: (1) a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint; (2) a complaint that is replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action; and (3) a complaint that asserts multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against. See Barmapov v. Amulal, 986 F.3d 1321, 1324 (11th Cir. 2021); Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015).
I find that the pleadings here were abusive litigation tactics. The Complaint and Amended Complaint were drafted to advance a political narrative; not to address legal harm caused by any Defendant.
The 819 paragraphs of the 186-page Amended Complaint are filled with immaterial, conclusory facts not connected to any particular cause of action. Consider the incendiary charge that Mr. Comey, the Director of the FBI, conspired with Ms. Clinton to maliciously prosecute him. Leaving aside the fact that Mr. Trump was never prosecuted, examine the allegations in the Amended Complaint pertaining to Mr. Comey. The first mention of Mr. Comey, other than identifying him as a party, was in paragraph 349: “Therefore, senior FBI officials Comey, McCabe, Page, Strzok, the DNC and Clinton orchestrated a plan to falsely accuse Flynn of colluding with Russia to protect the potential dissemination of the intimate details of their plot.” The next few paragraphs pertain to the FBI’s investigation of Michael Flynn, Mr. Trump’s former security advisor, who was subsequently fired for lying to the Vice President and the FBI. (¶ 383). The Amended Complaint alleges that Mr. Comey “scrambled to reopen” the investigation into Mr. Flynn (¶ 356), met with Mr. McCabe to discuss the investigation (¶ 359), and decided not to notify the incoming Trump administration of the investigation of Flynn (¶¶ 360-63). Next, the Amended Complaint cites a letter from the Director of National Intelligence, John Ratcliff, to Senator Lindsey Graham:
Ratcliff’s letter stated that Clinton and her campaign conceived the false Russia collision [sic] story to protect Clinton’s presidential bid, which was at the time, in trouble because of revelations about her illegally using a private email server to handle classified information. Ratcliff confirmed in the letter that Obama, Comey and Strzok knew about it.
(Amended Complaint at ¶ 369).6 [6 This provocative allegation stirred my curiosity, so I looked up the Ratcliff letter. The allegation in the Amended Complaint fails to mention that the information came from a Russian intelligence analysis and that Mr. Ratcliffe commented: “The IC (intelligence community) does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” Letter from John Ratcliff, Dir. of Nat’l Intel., to Sen. Lindsey Graham, U.S. Senate (Sept. 29, 2020) https://www.judiciary.senate.gov/press/ ... -hurricane. Mr. Trump’s lawyers saw no professional impediment or irony in relying upon Russian intelligence as the good faith basis for their allegation.]
The Amended Complaint continues with allegations about a meeting between Mr. Comey, President Obama, Vice President Biden, and Sally Yates (then a national security advisor) where President Obama directed Mr. Comey to investigate Mr. Flynn and not inform Mr. Trump. (Id. ¶¶ 372-377). The Amended Complaint alleges that Mr. Flynn was interviewed by the FBI, and that subsequently Acting Attorney General Yates informed Mr. Trump’s White House Counsel Don McGahn that Mr. Flynn misled Vice President Pence and other administration officials about the nature of his conversations with the Russian Ambassador. (Id. ¶ 379). The Amended Complaint then concludes: “Ultimately, the Defendants, including Comey, McCabe, Strzok, and Page, were successful in causing Flynn to be ousted as National Security Advisor.” (Id. ¶ 384).
The Amended Complaint then turns to the FBI’s Crossfire Hurricane investigation and four court-approved FISA applications targeting Carter Page. (Id. ¶¶ 385-90). The Amended Complaint alleges:
The FISA applications were reviewed by numerous FBI agents, FBI attorneys, and National Security Division (NSD) attorneys and, as required by law, was ultimately certified by the FBI Director James Comey and approved by then Deputy Attorney General Sally Yates.
(Id. ¶ 391).
From there, the Amended Complaint states: “In fact, no probable cause existed and there was no truth to any of the allegations against Carter Page, Donald J. Trump, or the Trump campaign.” (Id. ¶ 392).
The Amended Complaint then discusses the FISA warrant application and Mr. Comey’s approval of those warrants and alleges: “Mr. Comey was aware, or should have been aware, that there was no evidentiary basis for the FISA application, and that the Steele Dossier was not a credible source.” (Id. ¶¶ 292-407).
The next mention of Mr. Comey states that on May 8, 2017, he was fired from his position as Director of the FBI. The Amended Complaint then alleges that Mr. Comey “had documented several of his interactions with Mr. Trump in a series of memos,” and that after leaving the FBI, Mr. Comey shared those memos with a friend who he directed to leak to a New York Times reporter. (Id. ¶¶ 449-52).
The Amended Complaint continues:
453. The outcome that Comey desired – per his own admission to Congress – was to “prompt” the appointment of a special counsel to investigate Donald J. Trump’s alleged conspiracy with the Russian government.
454. The IG’s report noted that Comey had “set a dangerous example” by “releas[ing] sensitive information” to “create public pressure for official action.”
455. Comey was successful in getting the special master [sic] appointed, due to his unlawful leaking of information, even though Comey didn’t have enough evidence to pursue it in his own official capacity.
456. In May 2017, Robert Mueller was appointed as Special Counsel to “oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 Presidential Election and related matters.”7
This is what the Plaintiff’s lawyers considered to be the short and plain statement of the claim that Mr. Comey maliciously prosecuted Mr. Trump and conspired with Ms. Clinton to do so. These allegations, about investigating Mr. Flynn, signing FISA warrant applications pertaining to Mr. Page, or leaking information about his interactions with Mr. Trump, do not allege that Mr. Comey initiated an investigation of Mr. Trump, much less a prosecution. And the implausible claim that Mr. Comey conspired with Ms. Clinton, given the impact of his announcements on her 2016 campaign, not only lacks substance but is categorically absurd.
The Amended Complaint is a hodgepodge of disconnected, often immaterial events, followed by an implausible conclusion. This is a deliberate attempt to harass; to tell a story without regard to facts.
In order to understand the scope of this abuse, multiply the above discussion by thirty-one defendants and their lawyers, forced to try to analyze and defend against the sprawling Complaints. I sifted through the thread of allegations against each defendant only to find they added up to no cognizable claim. And the pleadings were drafted in a way to disguise that fact.
In three instances the Eleventh Circuit has found shotgun pleadings, less problematic than the pleadings here, as a basis for sanctions. See Jackson v. bank of Am., N.A., 898 F.3d 1348 (11th Cir. 2018); Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001); Pelleteir v. Zweifel, 921 F.2d 1465 (11th Cir. 1991).
In Jackson, the court described the case as an “abuse of process” effectuated “by filing a multi-count, incomprehensible complaint that flouted the Federal Rules of Civil Procedure and this Circuit’s well-established precedent.” Jackson, 898 F.3d at 1348. “By attempting to prosecute an incomprehensible pleading to judgment, the Plaintiffs obstructed the due administration of justice in the District Court.” Id.
The facts in Jackson are similar, although less egregious than here. The complaint in Jackson alleged fourteen causes of action and contained 109 paragraphs of allegations and each of the claims incorporated all previous allegations. The Defendants filed a motion for more definite statement identifying the complaint as a shotgun pleading. The Plaintiff did not oppose the motion but sought leave to file an amended complaint. The amended complaint “swelled to twenty-three pages and 123 paragraphs, made minor changes to a number of factual allegations, added two new counts, and listed one or more Defendants in parentheses under the heading of each count . . . . ” Id. at 1348. The Court of Appeals stated: “[h]ere, after being put on notice by Defendants of the specific defects in their complaint, the Jacksons filed an amended complaint afflicted with the same defects . . . . ” Id. Stating that “[t]olerating such behavior constitutes toleration of obstruction of justice,” the Court affirmed the trial judge’s order dismissing the amended complaint and instructed plaintiff’s counsel to show cause why he should not be ordered to pay double costs and expenses, including attorney’s fees and costs incurred in defending the appeal pursuant to Rule 38 of the Federal Rules of Appellate Procedure. Id. at 1357-59. The Court pointed out that the defendants had identified the deficiency and the Eleventh Circuit’s precedent in their motion. “If [plaintiffs’ counsel] was not aware of the precedent when he filed the [plaintiffs’] initial complaint, Defendants’ motion told him all he needed to know.” Id. at 1359. Nevertheless “he stood fast, brazenly filing a facsimile of his initial pleading.” Id.
Similarly here, Defendant Neustar identified the shotgun pleading deficiency and the Eleventh Circuit’s precedent as one of its grounds for dismissal of Mr. Trump’s initial Complaint. (DE 160 at 7-8, n.8). The Defendants’ joint Motion to Dismiss the Amended Complaint did likewise. (DE 226 at 46-47). The Plaintiff refused to acknowledge this clear precedent. Instead, he added 80 new pages, and new defendants (including his former Deputy Attorney General and a California Congressman) in order to rehash old grievances from the 2016 election.
The other two Eleventh Circuit opinions analyze the use of shotgun pleadings to support a frivolous RICO claim. In both, the Court found the tactic deserving of sanctions. In Pelletier, the Court of Appeals reversed the denial of a Rule 11 sanctions motion in a civil RICO case. Pelletier, 921 F.2d at 1465.8 Analyzing in detail the amended complaint in that case, the Court of Appeals concluded that the plaintiff failed to establish any of the required predicate acts, to show any continuing relationship or pattern of acts, or any injury flowing from those acts. Id. at 1496-1500.
Concluding that each of the counts in the amended complaint were objectively frivolous when filed, the Court of Appeals found it apparent that the case was brought to harass the defendants:
Our conclusion is buttressed by the manner in which [plaintiff] pled his case in the district court and briefed it on appeal . . . . [These] are quintessential “shotgun” pleadings, replete with factual allegations that could not possibly be material to any of the causes of action they assert. Each count incorporates all of these factual allegations and states, further, that it is based on the conduct in the complaint attributable to [defendant] and “those acting in concert with him.” Anyone schooled in the law who read these complaints, however, would know that many of the facts alleged could not possibly be material to all of the counts.
Pelletier, 921 F.2d at 1518. The appellate court found the amended complaint was conclusory, baseless and without any merit. In deciding that the claim was prosecuted in bad faith, the court rejected the thought that it might have been the “product of incompetent lawyering, and thus excusable, rather than” a tool of harassment, because the plaintiff was skilled in the law and had been warned he was likely to run afoul of Rule 11. Id. at 1519. The Court concluded:
We think that imposing sanctions in this case would serve the dual purpose of deterring the filing of frivolous claims and defenses while not chilling attorneys’ legitimate enthusiasm and creativity in advancing legal and factual theories. At a time when the federal courts -- which are a scarce dispute resolution resource, indeed -- are straining under the pressure of an ever-increasing caseload, we simply cannot tolerate this type of litigation. Particularly with regard to civil RICO claims, plaintiffs must stop and think before filing them.
Id. at 1522 (emphasis in original).9
In Byrne, the court affirmed a $400,000 sanction against counsel, under Rule 11, Section 1927, and the court’s inherent powers, finding that the expansion of a simple “garden variety medical malpractice” case to include RICO and other baseless claims was frivolous from the outset and doomed to fail. Byrne, 261 F.3d at 1115.
Identifying the complaint and amended complaint in Byrne as shotgun pleadings, id. at 1106, 1129, the Court of Appeals emphasized the harm presented by the tactic and the authority of Article III courts to control the practice through inherent powers:
Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice. The time a court spends managing litigation framed by shotgun pleadings should be devoted to other cases waiting to be heard . . . . Although obstruction of justice is typically discussed in the context of criminal contempt, the concept informs the rules of law—both substantive and procedural—that have been devised to protect the courts and litigants (and therefore the public) from abusive litigation tactics, like shotgun pleadings. If use of an abusive tactic is deliberate and actually impedes the orderly litigation of the case, to-wit: obstructs justice, the perpetrator could be cited for criminal contempt.
Byrne, 261 F.3d at 1131-32, 1130 n.110 (citations omitted).
In Byrne, the Court pointed out that plaintiffs file shotgun pleadings and frivolous claims to extort settlement of unmeritorious claims. Here, although his complaint asked for damages in excess of twenty-four million dollars, treble damages under RICO, and attorneys’ fees and costs, I do not think Mr. Trump or his lawyers actually thought the Defendants would ever agree to settle. This suit was filed for equally improper purposes—to harass and punish, for fundraising, and to advance a political agenda.
B. The Pleadings Contained Factual Allegations That Were Knowingly False Or Made With Reckless Disregard For The Truth.
The Plaintiff consistently misrepresented and cherry-picked portions of public reports and filings to support a false factual narrative. Often the report or filing actually contradicted his allegations. It happened too often to be accidental; its purpose was political, not legal. Factual allegations were made without any evidentiary support in circumstances where falsity is evident.
Examples include:
The Mueller Report. A section of the Amended Complaint is titled “A String of Federal Investigations Clear Donald J. Trump and Uncover the Defendant’s Illicit Conspiracy.” (Amended Complaint ¶100). After a two-year investigation, the Special Counsel “found no evidence that Donald Trump or his campaign ever colluded with the Russian Government.” (Id. ¶460). The Amended Complaint further alleges that Special Counsel Mueller “went on to exonerate Donald J. Trump and his campaign with his finding that there was no evidence of collusion with Russia.” (Id. at ¶7). While perhaps acceptable as a cable news talking point, that allegation is neither an accurate nor fair reading of the Mueller Report.10
First, the Mueller Report stated that “[ i]n evaluating whether evidence about collective action constituted a crime, we applied the framework of conspiracy, not the concept of ‘collusion.’” Mueller Report Volume I at 8. Second, in determining whether the conduct “amounted to a violation of federal criminal law” the question was “whether admissible evidence would probably be sufficient to obtain and sustain a conviction.” Mueller Report Volume I at 8. Third, the Report found:
[W]hile the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges . . . . [T]he investigation established that several individuals affiliated with the Trump Campaign lied to the [Special Counsel’s Office], and to Congress about their interactions with Russian-affiliated individuals and related matters.
Mueller Report at 9. Fourth, with respect to obstruction of justice, the Report states: “While this report does not conclude that the President committed a crime, it also does not exonerate him.” Mueller Report Volume II at 2; (DE 147-1).
Crossfire Hurricane Investigation. A core aspect of the Plaintiff’s claim is his contention that Ms. Clinton, Mr. Comey, and others were responsible for the Crossfire Hurricane Investigation. The Complaint and Amended Complaint copiously cite to the IG Report to support these allegations. But the IG Report found that the FBI opened the investigation “for an authorized purpose” and “with adequate factual predication” that had nothing to do with the Defendants or the Steele Dossier. (DE 143-1 at 347).
Charles Dolan Allegations. As set forth in my Order granting Rule 11 sanctions (DE 284), the Plaintiff alleged that Mr. Dolan was a former Chairman of the DNC (Amended Complaint ¶ 96), a senior Clinton Campaign Official (id. ¶ 4), and “an individual with intimate ties to the Clinton Campaign and one of its close associates” (DE 177 ¶ 96). In fact, as Mr. Dolan’s lawyer told Plaintiff’s counsel, he was none of those things. It made no difference. Despite an affidavit from Mr. Dolan saying he lived in Virginia, and the fact that service upon him occurred there, the Amended Complaint claimed he lived in New York. The Plaintiff’s lawyers’ excuse: There are a lot of Dolans—some of them live in New York. (DE 270 at 10).
The Complaint and Amended Complaint allege that Mr. Dolan was responsible for allegations in the Steele Dossier concerning salacious activity by Mr. Trump in Moscow. Mr. Dolan’s lawyers’ warnings that this was untrue went unheeded. In defending against sanctions, the Plaintiff’s lawyers pointed to the Danchenko Indictment.11 However, the Danchenko Indictment does not support Plaintiff’s claims, rather it contradicts and undermines them.
Criminal Indictments. The Complaint and Amended Complaint rely substantially on the Sussmann,12 Danchenko, and Clinesmith13 Indictments. The Plaintiff alleges that “these ‘speaking’ indictments not only implicate many of the Defendants named herein but also provide a great deal of insight into the inner workings of the Defendants’ conspiratorial enterprise. Based on the facts that have already been uncovered throughout the course of Durham’s investigation, it seems all but certain that additional indictments are forthcoming.” (Amended Complaint ¶ 8).
The Indictments themselves are not relevant. An untried indictment is not evidence of the conduct alleged. See United States v. Machado, 886 F.3d 1070 (11th Cir. 2018). A criminal indictment should be no more than the starting point for a lawyer’s good faith pre-filing investigation. The danger of overreliance has been demonstrated here, in light of the acquittals of Mr. Sussmann and Mr. Danchenko. That is not to say an indictment has no significance -- a grand jury has issued it with the assistance of a lawyer for the government. But a plaintiff’s good faith pre-filing inquiry cannot simply ignore the facts in an indictment that contradict and undermine his allegations while touting those he likes.
The Sussmann Indictment charged Mr. Sussmann with falsely telling the FBI’s General Counsel that he was not acting on behalf of a client when he conveyed allegations about email communications between the Trump Organization and a bank affiliated with the Russian government. But the Plaintiff relied on the Indictment to support his allegations of theft of trade secrets, violations of the Computer Fraud and Abuse Act, and violations of the Stored Communications Act in Counts I, VII, VIII, and IX. (DE 177 at 119, 163, 166, 170).
As the Order of Dismissal points out, there are legal deficiencies in these claims. But the Sussmann Indictment also warned the Trump lawyers of factual problems. It specified that the communications involved “purported DNS data reflecting apparent DNS lookups between Russian Bank-1 and an email domain, ‘mail l.trump-email.com.’” (Sussmann Indictment ¶ 16). DNS data is meant to be public and as part of the infrastructure for the internet, accessible to any entity. The Indictment further advises that the FBI determined “that the email server at issue was not owned or operated by the Trump Organization, but rather had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.” (Sussmann Indictment ¶ 7). The Sussmann Indictment does not support and instead contradicts the conclusory trade secret and unauthorized access allegations set forth in Plaintiff’s Amended Complaint.
And as noted above, the Danchenko Indictment contains allegations that, if true, were fatal to the Plaintiff’s conspiracy claims. The Danchenko Indictment states that, according to Mr. Dolan, “individuals affiliated with the Clinton Campaign did not direct and were not aware of” Mr. Dolan’s meetings and activities with Mr. Danchenko and other Russian nationals. (Danchenko Indictment ¶ 36). Further, it alleges that according to Mr. Dolan, he was unaware of the specifics of Mr. Danchenko’s project against Trump or that Mr. Danchenko’s reporting would be provided to the FBI. (Id. ¶ 52). In responding to Mr. Dolan’s sanctions motion, the lawyers claimed their allegations were “directly sourced” from the Danchenko Indictment. (DE 270 at 10). That is plainly untrue.
Twitter Suspension. To support his damages claim, Plaintiff alleged that he was “banned from different social media platforms, including Twitter” as a result of “the misinformation campaign waged by Hillary Clinton.” (Amended Complaint ¶ 524 n.277). However, Twitter suspended Mr. Trump on January 8, 2021—two days after the January 6th attack on the Capitol—because it determined Mr. Trump’s tweets posed “the risk of further incitement of violence.”14
Moreover, in a lawsuit Mr. Trump filed against Twitter, attempting to show state action, he alleges that “Democrat legislators” pressured Twitter to censor him and that he was banned for exercising his right of free speech. Trump et al. v. Twitter et al., No. 3:21-CV-08378 (N.D. Cal. July 7, 2021) (DE 1 ¶¶ 6, 48).
The assertion that the Twitter ban was caused by misinformation by Ms. Clinton five years earlier is plainly false.
C. The Plaintiff’s Legal Theories Were Frivolous, Foreclosed By Existing Precedent.
The Plaintiff recklessly advanced claims foreclosed by existing precedent that the most basic legal research would have revealed. It was not that the Complaint and Amended Complaint were inadequate in any respect, they were inadequate in nearly every respect, even after the deficiencies had been identified in the multiple motions to dismiss. The Eleventh Circuit has squarely held that to knowingly advance frivolous claims constitutes bad faith meriting sanctions under a court’s inherent powers. Peer, 606 F.3d at 1316 (reversing district court’s failure to award sanctions under inherent powers based upon Circuit Court’s finding that lawyer “knowingly pursued a frivolous claim, and thus acted in bad faith.”).
I will not detail all of the failings of the Amended Complaint here. Most are identified in the Order of Dismissal. I concluded that fundamental substantive defects precluded the Plaintiff from proceeding under any of the theories he advanced.
In arguing against the imposition of sanctions, the Plaintiff attempts to defend his legal positions. For instance, he contends that while novel, his assertion that the RICO statute of limitations should be tolled because of the former President’s duties is a compelling argument for an extension of existing law. (DE 284 at 4). But Clinton v. Jones, 520 U.S. 681 (1997), does not leave room for that argument. See Trump v. Vance, 140 S. Ct. 2412 (2020) (holding that President is “neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need”); Trump v. United States, No. 22-13005, 2022 WL 17352069 (11th Cir. 2022) (holding district court lacks equitable jurisdiction to block government investigation of former President). That is especially true here where Mr. Trump, in his personal capacity, found time during his presidency to file other civil actions. See, e.g., Trump v Mazars USA, LLP, 140 S. Ct. (2019); Trump v Deutsche Bank AG, 943 F.3d 627 (2d Cir. 2019); Trump v Comm. on Ways & Means, 391 F. Supp. 3d 93, 95 (D.D.C. 2019).
The argument that the statute of limitations should be extended because of the tolling provision of the Clayton Act is likewise frivolous. Even were it to be applicable to RICO, none of the government proceedings identified by the Plaintiff—the Sussmann and Danchenko Indictments, or the FEC proceeding—bear any relation to RICO. And in addition to the statute of limitations, Plaintiff’s RICO claim failed at every step of the substantive RICO analysis.
The Plaintiff does not even attempt to respond with respect to most of the legal failings of his claims. To reiterate a few:
• The malicious prosecution claim without a prosecution;
• The theory of personal jurisdiction based on an allegation that defendants “knew that Florida is a state in the United States which was an important one;”
• The trade secret claim without a trade secret or ownership;
• The Computer Fraud and Abuse claim foreclosed by Van Buren v United States, 141 S. Ct. 1648 (2021); and
• Obstruction of justice untethered to any official proceeding.
Despite its 193 pages, the Amended Complaint did not come close to stating a legal claim. That was never its intended purpose.
III. A PATTERN OF ABUSE OF THE COURTS.
I have explained why the totality of the problems with the Complaint, Amended Complaint, and the arguments and statements of Plaintiff’s counsel show that this lawsuit was filed and prosecuted in bad faith. But this case is part of Mr. Trump’s pattern of misusing the courts to serve political purposes. Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct that impairs their ability to carry out Article III functions. Procop v. Strickland, 792 F.2d 1069, 1073 (11th Cir. 1986); see also Martin-Trigona v. Shaw, 986 F. 2d 1384, 1388 (11th Cir. 1993) (affirming dismissal because lawsuit filed on behalf of vexatious litigant); O'Neal v. Allstate Indem. Ins. Co. Inc., No. 20-14712, 2021 WL 4852222, at *6 (11th Cir. Oct. 19, 2021).
Thus, while a litigant’s conduct in other cases would normally not be relevant, when the court is faced with a sanctions motion against a repeat offender, undeterred by admonitions, it has the authority to consider that litigant’s outside conduct. See Johnson v. 27th Ave. Caraf, Inc., 9 F.4th 1300, 1313-14 (11th Cir. 2021) (finding district court had “inherent power to investigate the scope and extent” of litigant’s misconduct that “threaten[ed] the integrity of the court.”); O'Neal, 2021 WL 4852222, at *5 (rejecting a plaintiff’s sanctions appeal, in part, because “the district court [] conducted a comprehensive examination of Plaintiff's litigation history, cited dozens of Plaintiff's past cases, concluded that only two had merit, and provided examples of past cases where Plaintiff followed an abusive strategy similar to that employed in this case . . . . ”).
A. Trump v. Pulitzer Board
On November 15, 2021, on behalf of Mr. Trump, Ms. Habba demanded the Pulitzer Prize Board “take immediate steps to strip the New York Times and the Washington Post of the 2018 Pulitzer Prize for National Reporting.”15 By correspondence styled “Demand Letter, Notice of Potential Litigation and Non-Spoliation of Evidence,” she threatened “prompt legal action” should the prize not be withdrawn.
Then, on May 27, 2022, Mr. Trump wrote stating: “I again call on you to rescind the Prize you awarded on blatantly fake, derogatory and defamatory news. If you choose not to do so, we will see you in court.”16
On October 13, 2022, Weber, Crabb, & Wein, P.A., another law firm representing Mr. Trump, wrote again threatening suit, claiming that in refusing to rescind the award “the Board and its members acted not only with reckless disregard for the truth, but with authentic animosity and malice toward President Trump and the desire to cause him true harm [sic].” As such, according to these lawyers, “the members of the Board are individually liable” for damages, including punitive damages for defamation.17
A little over a week later, Mr. Trump, at a rally in Robstown, Texas, held on October 22, 2022, announced: “Within the next two weeks we’re suing the Pulitzer organization to have those prizes taken back.”18
On December 13, 2022, Mr. Trump followed up on his threat by filing a lawsuit in a state court in Okeechobee, Florida, a location with no apparent connection to Mr. Trump or any of the defendants. Trump v. Members of the Pulitzer Prize Board et al., No. 22-CA-000246, (Fla. 19th Cir. Ct. Dec. 13, 2022) (hereinafter “Trump v. Pulitzer”) (DE 1). He sued, individually, nineteen members of the Pulitzer Prize Board alleging defamation by implication.”19 The complaint, 29 pages, 145 paragraphs, similar to the Amended Complaint at issue here, misrepresents the findings of the Mueller Report and the origins of the Operation Crossfire investigation. The alleged defamatory statement reads:
A. Statement from the Pulitzer Prize Board. The Pulitzer Prize Board has an established formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump about submissions from the New York Times and the Washington Post on Russian interference in the U.S. elections and its connections to the Trump campaign – submissions that jointly won the 2018 National Reporting Prize.
These inquires prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the [2018 Pulitzer Prizes in National Reporting Stand] conferral of the prizes.
(Trump v. Pulitzer, DE 1 ¶ 117).
It has been said that journalism is the first draft of history.20 The 2018 Pulitzer Award for National Reporting honored the staffs of the New York Times and the Washington Post “[f]or deeply sourced, relentlessly reported coverage in the public interest that dramatically furthered the nation’s understanding of Russian interference in the 2016 presidential election and its connection to the Trump campaign, the President-elect’s transition team and his eventual administration.”21 The effort by Mr. Trump and his lawyers to use the courts to bully journalists as part of a dishonest and futile attempt to rewrite history is a shameless attack on a freedom essential to democracy. See Mills v Alabama, 384 U.S. 214, 218-19 (1966) (“[T]he press serves . . . as a powerful antidote to any abuses of power by government officials and a constitutionally chosen means for keeping officials elected by the people responsible to all of the people who they were selected to serve.”).
