“Political Hackery” is No Legal Conspiracy: Vindman Lawsuit Tossed by Federal Court for Failing to State a Legal Claim

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

40 thoughts on ““Political Hackery” is No Legal Conspiracy: Vindman Lawsuit Tossed by Federal Court for Failing to State a Legal Claim”

  1. Lawsuits without clear legal merit seems to be a popular tool by political entities on all sides, advocacy groups, etc. The point isn’t the lawsuit. The point is the media grab, knowing full well a short public attention span means the message gets sent without any accountability. Low brow tactics? Yes. Successful tactics? Also yes.

    1. And where is simply denied on the f” feres” doctrine! ??? I mean if ppl can be maimed and killed…And don’t get compensated…who is this whining whiner? Get in line like everyone else. See what percent the va rates you! Give up your “sound mind” for a ten percent rating!…if you got a conspiracy claim ….so does 100 percent of sof!

      1. Worse – f if vindman has a valid claim….then all sexual assault victims in the dod have as fallout valid “conspiracy” claims. No judge wants to manage that Pandora box!

  2. The Bronx:


    Donald Skinner, NY Election Worker: “I mean, I’m a Republican but I vote Democrat.”
    Skinner: “In order for me to work [at this polling location], I had to be a Republican.”
    Skinner: “They [Republicans] were the only ones that were giving out the [poll worker] jobs at the time…so if I wanted to go out there and change the system, from within inside, I had to be a Republican.”

  3. I know I am going to come across as pedantic here, but for those non-military types and the editors of this blog, how the ranks are abbreviated is one of those things that distinguishes the services from one another. The Army went to all capital letters some time ago. In Vindman’s case, he is a LTC.

    WO1, CW2, CW3, CW4, CW5

    The use of Lt Col (without the periods) is used for Air Force officers.

    I realize some claim that using Lt. Col. as the “civilian” equivalent of the Army’s military abbreviation is acceptable, I’ve always bristled a bit at the non-specificity of the civilian spelling of the rank when context (which service branch) is not clear.

    1. Context is clear; when battle ship Alabama said: “dammit”….patriots did and meant it! Dammit!

      1. Jajuan62 ….a federal court just doesn’t page 18 to 40 ridiculing LTC vindmind. .. If they don’t mean to make a point. He’ll appeal….and the appeals court will ask a briefing on damages….And the feres a doctrine. Military service is harsh. You turn square corners. You “damages” are what the govt allows. You don’t get “damages” because a fortori deserve extra damages because you became a “afortori” became a public figure! ! Ask that female with he ankle shot up in “combat”…became a public figure still only got ten percent! Ask that gal ..jessie…recovered by sof…became a public figure only got her percent. vindman has the same contract the rest of us had. You have no damages….unless the va says. Hey here court says your s public figure? says so! No. He has no especial damages. If he believes he was the victim of a conspiracy…..the va will give him ten percent…And a forever diagnosis of ” feelings of persecution”. It could not be any other way….where some in the dod get standing……because their assignment becomes overtly political….but the rest of the troops get no standing? This Makes the rotten feres doctrine start to look pretty fair!

  4. Regardless of the topic today: Am I the only one wondering what to think of a nation, or group of millions of voters who would actually cast a vote for John Fetterman? Fetterman, Vindman, whoever. This is a sad day for America.

    1. It is. And will we now see members of Congress dress like Fetterman? Will our congressmen, court judges, male governors, etc. now show up for office in jeans and a sweatshirt? (This has NOTHING to do with Fetterman’s disability.)
      I wish it was the 1990s again. I would have taken a more active role in staving off this decline (for as little as one person could do). But I was too busy with my own career.
      Here’s a quote from author Joseph Conrad (as young and daring Marlow runs away from home to join the merchant marines, then witnesses,- from a distance in an escape dinghy, the ship at sea go down in flames)
      “Oh…youth! [The glamour of it]..the fire of it, more dazzling than the flames of the burning ship, throwing a magic light on the wide earth, leaping audaciously to the sky, …presently to be quenched by time, more cruel, more pitiless, more bitter than the sea—and like the flames of the burning ship surrounded by an impenetrable night.”

      1. (my point being, we must not lose our [youthful] enthusiasm to get things done, to effect change…because there is no going back)

    2. “This is a sad day for America.”

      Look on the bright side. Fetterman is so inarticulate, weak, and cognitively deficient that his ability to destroy is defanged.

      A bumbling criminal is less harmful than a competent one.

      1. When Fetterman Fails, Gov. Shapiro will appoint a replacement – the expectation is his wife.
        Who will serve UNTIL the next statewide election.
        At that time there will be an election for someone to serve out the Balance of that Senate Term.

      2. @Sam

        I suspect the people propping Fetterman up are a lot less incompetent, and he has accusations of discrimination baked in, just like every other dem candidate. It used to be a cliché, but these days, the people in front of the cameras are largely place holders for the party.

    3. I guess we will have to see significantly more failure before people wake up to how dangerous and disasterous democrats are.

      Overall the results so far are weird and it will take some time to fully understand them.
      Oz Lost to Fetterman
      And Lake appears to be losing to Hobbs

      Both not only disappointments – but highly questionable.
      Oz was not a perfect candidate, Lake was pretty good, But Hobbs and Fetterman are obvious losers.

      PA is explainable by Fraud – any republican must overcome and extra 200K in fraudulent votes from Philadelphia ALWAYS.
      That is just a given in PA.

      There are several outcomes that are already clear

      We are NOT going to fix our elections anytime soon.
      That is really important. Democrats will NOT allow honest and trustworthy elections.
      We are going to be stuck with opaque, lawless, corrupt elections throughout the country for years to come.

      Trump is the clear Loser in this, and DeSantis the clear Winner.
      I expect Trump’s big Nov. 15th announcement to be that he is out for 2024.

      This election was a proxy Trump Biden rematch – Both Biden and Trump made this election a Trump Biden rematch.
      And While Biden did not “win”
      Trump lost. Most of his candidates lost.
      I am not happy about that – there is plenty of Time for DeSantis.
      But it is how it is.

    4. @Randy

      Same here. We may very well have lost the United States yesterday, and elections no longer seem to be a remedy. I do not expect easy times ahead. Feel free to disagree. Ignorance appears to be bringing the West to its knees, and it is reverberating through the highest offices in the land.

      1. We have not lost the country.

        We are merely in for even more failure before we return to sanity.

        The one critical advantage over left wing nuts is that their ideology DOES NOT WORK.

        We have two more years of massive failure before we get another opportunity to self correct.

        Democrats have 2 years to come to their sanity and cease wreaking havoc on the country before we do this again.

        I would be happy to see them get their act together, reject this left wing nonsense and place the real interests of the country first.
        I do not care who governs – if they govern well and respect our liberty.

        But they odds of democrats governing well is near zilch.

        Democrats had a come to jesus moment in 2016. They missed it.
        Since then they have been trying to hold back the pendulm
        by getting ever more extreme.
        That can not last forever.

        Being a left wing nut is a self punishing act.

  5. For you non military types, a Lt. Colonel busses tables in the senior Officer’s Club. He is in the stack of mid rank officers who must move up or move out. IOW, get promoted or get “released”. I suspect he was on his way out, and wanted to make a name for himself to buff up his resume in DC.

  6. Lt. Col. Alexander Vindman and Brother should be Exiled & Deported to Ukraine,
    where they can live out their days enjoying the WAR They created.
    And take warmonger John Bolton with them.

  7. Vindman is/was a self-righteous, self-centered, pompous fool who greatly exaggerates his role in foreign affairs or the WH hierarchy. He was after all a junior Lieutenant Colonel whose Army responsibilities do not rise above those of a battalion commander, hardly a leader in world affairs or decision maker on national issues. His sense of loyalty to his ancestral country drove his hatred for how Trump dealt with Ukraine at the time, which was clearly political. Unfortunately, Vindman got 15 minutes of fame and unwittingly became a political tool used by those in congress whose unmitigated hatred for Trump topped all priorities. Now that he’s enjoyed the limelight he continues to seek more as he attempts to become relevant. Sad that he has brought discredit upon himself, the Army and the uniform that many of us have worn as well.

    1. Ease up, geesh. Having served as an Army officer myself a lieutenant colonel is a field grade officer due the respect of his rank. Unless you have served at O-6 or general ranks, to the average grunt, seeing their O-5 battalion commander is a big deal.

      1. He is entitled to that respect – when he is appearing representing the military – he was not.

        There are rules on this. He violated them.

        And worse still in terms of facts, his testimony offered nothing.

  8. I thought the Lt Col’s actions verged on mutiny. Anything after that he should have expected. It’s time for him to move on. In reviewing his history, he seemed to have had an exceptional career but his reporting and accusations leading to the impeachment were highly questionable and bordered on mutiny. The military does not make policy but gives it’s input and then follows the orders given to them, if judged to be legal. It should never be partisan otherwise you wreck the chain of command and discipline. His proper action should have been to resign and then make the accusation. Just as the Marine Lt. Col who criticized Biden’s Afghanistan withdrawal and then resigned when he was told to be quiet and forfeited his pension also. Frankly his actions in this regard bear great similarity to Gen. Billy Mitchel’s accusations against the Army and Navy for multiple instances of negligence after a Navy Dirigible crashed in a storm with multiple fatalities. Mitchel was right about the negligence but wrong about how he stated it. When found guilty in the court martial he promptly resigned. He was later vindicated by events and remains highly regarded for his vision and what it cost him.
    I don’t think Lt Col Vindman will achieve that memory.

  9. Vindman gives immigrants that proudly serve in the US military a bad name. His entire performance should have triggered a court martial. Disobeying direct orders. His concerns addressed to his superior were non existent and he was told to stand down. But he took his concerns to an IG, who investigated and told him nothing existed, so he took it to the Intelligence Community IG, who launched an investigation where he lacked jurisdiction. At the core, though, Vindeman launched, this all with nothing but hearsay.

    The crime? The President of the United States contradicted the policy of the State Dept working group. That’s it. The President of the United States following the foreign policy he designed, ignoring the State Dept.

    1. Justice Holmes, there may not have been a red wave, but have you finally learned that Justice Sonia Maria Sotomayor is a woman? Not knowing that shows…..

    1. The only “damaging” part of Videman’s testimony was the mind reading.

      He provided no facts that were not damaging to him.

      He testified that he violated the espionage act, by sharing classified information with someone HE claimed had both a need to know and sufficient clearance. Vindmandoes not have the authority to decide who has a need to know – regardless, determinations regarding who has the need to know and sufficient clearance are not made by the person sharing the classified information.

      I attended and gave classified briefings. Before doing so the FSO’s for my fascility and that of those I was briefing determined who was allowed to attend and what could be shared.

      1. Well I don’t recall him taking the fifth. But someone did leak the “perfect call”. You are right. If that call was classified….how was he all blabber about it? Who declassified it? Shiff? I bet the national archives declassified it. Ahead of time. Because who else has classification authority?

        1. The issue is not his testimony before Congress, it was that he shared the transcript with I forget his name – but the “deep throat” who filed the complaint but never testified.

          Vindeman was cleared to review the transcript. The person he provided it too was not – regardless of his clearance level.
          Nor was Vindeman free to decide that someone else had both clearnace and a need to know.
          That is decided by a completely independent set of security personal.
          The separation between the gatekeepers and those with clearance to access classiifed information is part of how our classification system is designed.

          When I held a TS/SCI I was never allowed to share classified information without first having those people cleared by my FSO.

    2. He was in military uniform because at the time he was in the active-duty US Army. The setting was formal — therefore, the formal dress blue uniform was authorized. I am no fan of Vindman’s interpretation of “facts” but wearing the uniform and insisting on being addressed as a lieutenant colonel was his earned right.

      1. You are incorrect. This was much debated at the time.
        Vindman was dispatched to the WH at the time.

        The military has incredibly strict rules on when and what uniforms to wear.
        Vindman was working in the WH at the time – he was NOT entitled to wear a uniform at all – much less the dress uniform that he did.

      2. In his appearance before Congress he was NOT appearing representing the military.
        He was not entitled to wear a uniform and he was not entitled to be addressed by his rank.

        I did not make these rules – The military did.
        You can confirm this by paying attention to how others in the military who appear before congress are dressed and addressed.

  10. His position during the “impeachment” were highly partisan and unjustified. It was done out of pure political maliciousness. I have no sympathy for Vindman.

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