Dear Democratic National Committee:
I'm sure you are all very excited about the big boisterous federal complaint you've filed against Russia, the GRU, Wikileaks, the Trump campaign, Rasputin, Richard Nixon, Jared Kushner, Al Gore for inventing the internet, and so on.
Can we talk?
I'm not going to hector you on all the legal and theoretical problems with your complaint. Other people who are smarter than I am are already doing that.
I just want to talk about one aspect . . . .
. . . . it's our little friend RICO.
DNC. DNC, my friend. It's almost never RICO, and throwing down RICO to signify THIS IS BIG is a move that puts legal strategy behind public relations.
RICO is a complex statute designed to address criminal organizations — by which I mean not organizations that do criminal things in pursuit of their goals, but organizations whose purpose is criminal. Stretched past that, it gets needlessly complex.
I understand. "RICO" is the new "awesome." It conveys, to people who don't understand it, "the things these people did are really bad and really criminal." It's a big frowny emoji. But the vast majority of the time it's far more trouble than it's worth in court.
First, federal judges hate RICO. They hate it because it's unseriously overused by litigants without enough confidence to let their core substantive claims speak for themselves. There are three groups that use RICO indiscriminately: pro se litigants complaining that the Bureau of Indian Affairs implanted SatNav in their junk, plaintiffs' attorneys of the sort who go to court in a sports coat they keep in their glove compartment, and professional vexatious litigants. That's why many federal judges often have standard orders they issue in civil RICO cases that say, in effect, "you think you have a valid RICO claim? Fine, answer these 20 complicated questions to help me sort it out." Judges don't do that for other claims. So: when you come into court with a RICO claim, you start (at best) with the judge suspicious of your professionalism and credibility.
Second, it's very difficult to allege RICO properly, and unusually easy to get a RICO claim dismissed for failure to allege it properly. The requirements are arcane. It's common for federal courts to dismiss them or, at least, for the plaintiff to have to make multiple attempts to plead them right. To quote Judge John G. Koeltl (who has drawn the DNC's case) in a 2016 opinion:
Courts have repeatedly warned against attempts by plaintiffs “ ‘to mold their claims to the RICO form even though their injuries do not fall within those intended to be addressed by the Act.’ ” Lefkowitz v. Reissman, No. 12cv8703 (RA), 2014 WL 925410, at *4 (S.D.N.Y. Mar. 7, 2014) (quoting Rosenson v. Mordowitz, No. 11cv6145 (JPO), 2012 WL 3631308, at *5 (S.D.N.Y. Aug. 23, 2012)). The alleged predicate acts of mail and wire fraud “ ‘merit particular scrutiny,’ ” id. (quoting Cohen v. Cohen, 993 F.Supp.2d 414, 423 (S.D.N.Y.2014)), lest the courts allow the RICO statute “to federalize garden-variety state common law claims,” id. (quoting Gross v. Waywell, 628 F.Supp.2d 475, 483 (S.D.N.Y.2009)).
Put another way, alleging RICO usually gives the defense a weapon — it allows them to file a credible motion to dismiss the RICO claim, which at a minimum will drag out the litigation. It often ensures you'll spend the better part of a year squabbling about how the complaint was drafted rather than getting to the heart of the matter.
Third, practically speaking, RICO is more bark than bite. Oh, sure — RICO has provisions for triple damages and forfeiture of assets and all that jazz. But that's all stuff that could hypothetically happen at the end of a case, years down the road. What does it get you now? Usually, very little more than bragging rights to say "I DID A RICO." The vast majority of federal cases are resolved short of trial through some method other than a judgment reflecting the full weight of what could have been won. Very occasionally (not in this case) RICO will provide your vehicle to get into federal court, in which case it might be worth it. But more often than not, it's mere signalling that doesn't have much impact on the outcome.
If there's a legal lesson from the Trump era, it's the one I suggested last Friday after the hearing in the Stormy Daniels v. Michael Cohen case — public relations strategy often conflicts with legal strategy. DNC, your lawsuit appears to reflect you going all-in on public relations strategy at the expense of effective legal strategy. I offer no opinion on how well this will work out in the court of public opinion (other than to restate my faith in your capacity to snatch defeat from the jaws of victory). But legally, your complaint appears drafted in a way that will be unnecessarily easy to attack in court — which, of course, detracts from the public narrative.
RICO is a mother-of-all-bombs type of thing: showy, but not necessarily effective. Go with precision drone strikes instead.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/04/23/dear-dnc-we-need-to-talk-about-rico/
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