Jose Pagliery
Sat, August 19, 2023
Photo Illustration by Elizabeth Brockway/The Daily Beast/Reuters
Former President Donald Trump is a busy man.
He faces four different indictments, 91 felony charges, a quickly depleting political war chest, and is running for president. And yet, with all of his own legal problems, Trump is focused on a revenge lawsuit against his old political rival Hillary Clinton and her allies.
Most bizarre of all, Trump and his lawyer, Alina Habba, are suing Clinton in a manner that could land them a huge fine—which would be a second fine for this lawsuit.
Back in January, U.S. District Judge Donald M. Middlebrooks berated Trump and Habba for wasting everyone’s time in a blistering order that personally sanctioned them $937,989.
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“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,” Middlebrooks wrote, ripping into Trump and his lawyer for firing an indiscriminate spray of rubbish in “a quintessential shotgun pleading” that merely served “a political purpose.”
Middlebrooks was describing the way that Trump sued everyone he has publicly blamed for fueling pernicious conspiracies that he’s a Kremlin agent: Clinton, her 2016 campaign chair, Democratic lawyers, and FBI officials who launched the infamous Crossfire Hurricane investigation looking into Trump-Russia connections.
Then came the so-called Durham Report in May. In it, Department of Justice Special Counsel Robert Durham tried to defend the spectacular failure of his four-year investigation into potential malfeasance by the feds who investigated the Trump-Russia debacle.
While Fox News pundits waved it around as evidence of a Deep State anti-MAGA conspiracy, keen observers noted that it contained no bombshells and largely failed to glean much useful information—resulting in a low-end guilty plea and two failed prosecutions. To some, it read like a rehash of DOJ Inspector General Michael Horowitz’s behemoth report about the headache-inducing drama published back in December 2019.
Now, Trump and Habba are trying to reanimate their dead lawsuit by claiming that the Durham Report “seismically alters the legal landscape of this case.” In a court filing last month, Habba asserted that it “corroborates many facts and allegations about which this court expressed skepticism,” going on to boldly warn the judge—on the very first page—that she plans to ask him to step aside.
“The orders entered by this court imposing sanctions against President Trump and his counsel raise reasonable questions as to the appearance of impartiality,” she wrote, “and therefore a motion to disqualify is forthcoming.”
For another 18 pages, Habba describes all the ways the Durham Report somewhat aligns with the hundreds of allegations she made in her initial lawsuit.
For example, according to the Durham Report, the CIA director briefed then-FBI Director James Comey and other top Obama administration officials that Clinton planned to vilify Trump by spinning up stories about his supposed illicit Russian connections—three days before Comey decided to open a Trump-Russia investigation based on an unverified tip coming in from Australia. The only previous mention of that in the previous IG report seems to be a vague line and footnote about a White House Situation Room meeting.
Reuters/Brendan McDermid
But Trump’s lawyer goes on a limb to say that it means the FBI director was actively trying to help get Clinton elected—the same guy credited with delivering the deathstroke to her tepid presidential campaign when he broke with agency tradition and held a press conference to admonish Clinton and her staff for having a private email server and being “extremely careless in their handling of very sensitive, highly classified information.”
“Thus, it is not ‘implausible’ or ‘absurd’ that the Director of the FBI, Defendant Comey, conspired with Defendant Clinton, President Trump’s political opponent,” Habba wrote in her latest court filing.
In a more recent filing on Friday, another Trump lawyer, Jesse Binnall, also made the point that the Durham investigation’s failure to prosecute two men at trial isn’t relevant. His reasoning is that Durham had a much higher bar to prove he was right, given that criminal trials require jurors to be 100 percent certain of someone’s guilt. By contrast, Trump’s revenge lawsuit against Hillary and company is a civil matter, in which jurors need only be convinced by slightly more than 50 percent certainty.
The Durham acquittals and failure “does not mean that the findings are not true. Rather, this means that a jury did not find them guilty of the charges beyond a reasonable doubt. That is, of course, not the standard here,” Binnall wrote on Friday.
But overall, the Trump legal team also leans heavily into a Fox News reading of the Durham Report.
For example, the report does criticize the FBI for opening a Trump investigation based solely on a tip—without doing enough due diligence and checking with other spy agencies. It notes that “neither U.S. law enforcement nor the Intelligence Community appears to have possessed any actual evidence of collusion in their holdings at the commencement of the Crossfire Hurricane investigation.”
Habba uses that to say that there wasn’t any evidence at all—and chalks it up to political bias.
“As the Durham Report now confirms,” she claims, “the FBI opened an investigation into President Trump without ‘any actual evidence.’ The FBI did so swiftly, without evaluating any of the ‘evidence’ given to them, through agents with hostile feelings towards President Trump.”
But in doing so, she goes where the Durham Report dared not go. Notably, the former U.S. Attorney for Connecticut noted that “confirmation bias played a significant role” in the way that FBI agents were willing to ignore information that “did not support the narrative of a collusive relationship between Trump and Russia.”
But nowhere in his report did he mention political bias driving the FBI’s Trump-Russia probe. In fact, it actually notes the opposite, pointing out how the DOJ inspector general years earlier found that political bias didn’t actually guide the FBI officials who approved spying on a Trump campaign adviser.
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The inspector general in 2019 “did not find documentary or testimonial evidence that political bias or improper motivation influenced the FBI's decision to seek FISA authority on Carter Page,” Durham quotes from the IG report.
But the biggest hurdle for Trump at this point is that it’s probably too late to relitigate the same things he’s been railing about at 2016 campaign speeches and Twitter and Air Force One and 2020 campaign speeches and Truth Social and Trump Force One and now 2024 campaign speeches.
Last year, Judge Middlebrooks already decided that it’s too late for Trump to sue over this stuff. When he dismissed Trump’s claims against everyone except the federal government back in September 2022, the judge noted that the former president simply waited too long to accuse everyone of a mob-like racketeering scheme—noting that Trump can’t lie and claim ignorance, because he’s been tweeting the same tired complaints about Clinton for years.
Trump “cannot in good faith claim to have had no knowledge of a claim that he broadcasted to his social media followers nearly five years ago,” Middlebrooks wrote last year.
While Habba claims that “the Durham Report provides new context” to the lawsuit, she’s also running that risk that Middlebrooks will use this as an opportunity to closely scrutinize the Durham Report—and drill down on just how not new it actually is.
And this judge—an appointee of Hillary Clinton’s husband and former president, Bill—has already shown zero patience for Trump’s deliberate misreading of official government findings.
As he noted when scolding Habba earlier this year, the IG report sure caught missteps but in the end, senior FBI officials were still “in compliance with Department and FBI policies” and “Crossfire Hurricane was opened for an authorized investigative purpose and with sufficient factual predicate.”
Trump “and his lawyers are of course free to reject the conclusion of the Inspector General. But they cannot misrepresent it in a pleading,” Middlebrooks wrote then.
And he’ll probably say the same thing again.
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