While largely lost in election day coverage, United States District Judge James Boasberg dismissed the much heralded case of retired Army Lt. Col. Alexander Vindman against Donald Trump Jr., Trump ally Rudy Giuliani and others for witness intimidation and retaliation. In a prior column, I criticized the lawsuit as deeply flawed. As is often the case, the media quickly moved on from the case and there is relatively far less coverage of the dismissal than the filing.
Lt. Col. Alexander Vindman is the former Director for European Affairs for the National Security Council. He filed the federal lawsuit alleging violations of his civil rights by Donald Trump, Jr.; attorney and Trump advisor Rudy Giuliani; former Deputy White House Communications Director Julia Hahn; and former White House Director of Social Media and Deputy Chief of Staff for Communications Daniel Scavino, Jr. He alleged a “conspiracy” to intimidate him and to retaliate against him as a witness against Donald Trump during his first impeachment proceedings. He claimed that this conspiracy left “a stain on our democracy.”
While I criticized the treatment of Vindman at the time, I expressed great skepticism over the “novel” claims under the Ku Klux Klan Act. The act was meant to prevent groups like the KKK to use “force, intimidation, or threat” to deter people from serving in federal office or carrying out their duties in federal office. Since the law can cover efforts to intimidate witnesses, Vindman claimed that these individuals engaged in a conspiracy to silence him. However, such an argument would have sweeping impact on free speech, particularly in political discourse:
The problem with the complaint is that it would require the court to delve into political disputes between Congress and the White House. What Vindman calls “false claims” can be matters of opinion and protected as political speech. Indeed, Vindman himself has been criticized for suggesting that some viewpoints should be punished.
In his 29-page ruling, Judge Boasberg recognizes the “harsh, meanspirited, and at times misleading attacks” against Vindman but declares that “political hackery alone does not violate [the law at issue].”
Notably, this motion alleged that he failed to state a claim for civil conspiracy under Federal Rule of Civil Procedure 12(b)(6). In such a motion, the alleged facts are read by the court in favor of Vindman. The Court concluded that, even assuming these facts in his favor, he failed to state a claim because there is no evidence of a conspiracy against Vindman:
“Taken as true, the facts establish that Defendants worked together and had the common motive of defending Trump during his impeachment proceedings. They do not, however, show that any Defendant here joined with any other co-conspirator in the specific goal of intimidating Vindman from testifying or performing his job.”
When it was filed, liberal legal experts on Just Security insisted that Vindman was “right on the law.” Another expert declared “it’s difficult to imagine the defense offering up any justification of Vindman’s treatment that wouldn’t be laughed out of the courtroom.” Jessica A. Levinson, a professor at Loyola Law School in Los Angeles, said that the “plain text of the statute” supported Vindman and that “you can absolutely say with a straight face that there’s a ‘there’ there.”
Judge Boasberg, a Clinton appointee, was clearly unwilling to go “there.” Vindman could now appeal and push this novel theory on appeal. Again, however, the analysis of these experts downplayed or entirely ignored how this interpretation would allow far greater prosecution of political speech as forms of intimidation.
While the court did not address free speech issues under cases like Brandenburg v. Ohio, the decision raises interesting comparisons to the claims that former president Donald Trump could be prosecuted for his January 6th speech for inciting an insurrection. Despite overwhelming coverage of the D.C. Attorney General’s pledge to launch a criminal investigation, that effort seemed to be quietly dropped. The January 6th Committee has produced high disturbing evidence, but has not been able to establish any direct conspiracy to trigger or sustain the Capitol riot.
Vindman was represented by Genevieve C. Nadeau and other lawyers from the Protect Democracy Project.
The defendants Trump Jr. and Dan Scavino were represented by Harmeet Dhillon.
Here is the opinion: Vindman v. Trump