On Feb. 2, Alex Vindman, the driving force of the first impeachment of President Donald Trump, filed suit in a federal court in D.C. against Donald Trump Jr, the former president’s son; Rudy Giuliani, the president’s former personal attorney; Julia Hahn, the former special assistant to the president; and Daniel Scavino Jr, a Trump communications official.
Vindman’s lawsuit alleges the four defendants conspired to intimidate and retaliate against him, in violation of the Ku Klux Klan Act of 1871. Here’s what you need to know about Wednesday’s lawsuit.
The Man Behind the Impeachment
Vindman was a director within the National Security Council charged with, among other things, listening to telephone calls between the president and foreign leaders. That included the July 25, 2019, conversation President Trump had with newly elected Ukrainian President Volodymyr Zelensky.
A so-called “whistleblower” later filed a complaint, purportedly under the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA), claiming that in that call Trump had used “the power of his office to solicit interference from a foreign country in the 2020 U.S. election.”
The “whistleblower’s” complaint, however, was based solely on second-hand information, with the unidentified individual claiming he had learned that in Trump’s July 25, 2019, phone call, the president had threatened to withhold aid from Ukraine unless President Zelensky investigated the Biden family and any role Ukraine had played in interfering in the 2016 election on behalf of Hillary Clinton.
News of the “whistleblower” complaint began swirling in mid-September 2019, beginning with release of a letter by Democrats Rep. Eliot Engel, chair of the Committee on Foreign Affairs; Rep. Adam Schiff, chair of the Permanent Select Committee on Intelligence; and Rep. Elijah Cummings, chair of the Committee on Oversight and Reform. They demanded records relating to President Trump and Giuliani’s supposed “attempts to manipulate the Ukrainian justice system to benefit the President’s re-election campaign and target a possible political opponent.”
Trump short-circuited the circus by releasing a transcript of his telephone call with his Ukrainian counterpart. It revealed that Trump had not threatened to withhold funds from Ukraine unless the country launched the investigations Trump believed appropriate. Later, Trump declassified and released a copy of the whistleblower complaint, which confirmed that the “whistleblower” had no first-hand knowledge of the call and was merely repeating gossip.
Schiff, who was leading this Ukrainian sequel to the Russian-hoax witch hunt, at first promised to bring the whistleblower before his committee to testify. But then news broke that before filing his complaint, the whistleblower “secretly worked with Rep. Adam Schiff’s Democratic staff.” Since then, the whistleblower remained undercover, although RealClearInvestigations identified the whistleblower as the CIA’s Eric Ciaramella.
With Ciaramella remaining undercover to protect Schiff, Vindman became the public face of the allegation that Trump had threatened Ukraine for political gain. But, according to reporter Byron York’s book on the impeachment, “Obsession: Inside the Washington Establishment’s Never-Ending War on Trump,” Vindman was not corroborating Ciaramella’s accusation. Rather, based on York’s exhaustive research, which included interviews with key individuals, Vindman provided the whistleblower the details about the telephone call to include in the complaint.
“Vindman was the person on the call who went to the whistleblower after the call, to give the whistleblower the information he needed to file his complaint,” Rep. Lee Zeldin, R-N.Y., said. According to another senior congressional aide, “For all intents and purposes, Vindman is the whistleblower here, but he was able to get somebody else to do his dirty work for him.”
During his congressional testimony, Vindman refused to identify the whistleblower, but he testified that he talked to only two people outside the NSC, one being George Kent, a State Department official focused on Ukraine. Vindman and Schiff refused to identify the second individual, merely stating he was a member of the “intelligence community.” And when Republicans pushed for the identity of the second man, Schiff and other Democrats directed witnesses not to respond, to protect “the identity of the whistleblower.”
While Vindman became the Democrat’s “star” witness at the impeachment hearing, the majority of the media provided scant coverage of the details of his testimony. For instance, “Vindman repeatedly said that he viewed Trump’s phone call with Zelensky as ‘wrong,’ but he was unable to articulate precisely why.” Also, “he expressed frustration that the elected president was pushing a foreign policy at odds from the ‘interagency consensus’ of the bureaucracy that he felt should control foreign policy,” suggesting Vindman’s real complaint about Trump concerned the president’s policy judgments.
The House nonetheless impeached Trump. But within days of the Senate acquitting him, Vindman was transferred from the National Security Council—and for good reason. He later retired from the Army in July 2020. He now claims in his lawsuit that his removal from the NSC and eventual retirement were caused by an illegal conspiracy undertaken by Trump’s son and advisors, in violation of the Ku Klux Klan Act of 1871.
The Ku Klux Klan Act?
As noted, Vindman sued the four Trump-connected defendants under the Ku Klux Klan Act of 1871. While Vindman’s reliance on that federal statute, which sought to address violence and other discriminatory practices in the Reconstruction South, strikes an odd chord, the Supreme Court has made clear that courts should give the various reconstruction statutes “a sweep as broad as their language.” The language on which Vindman relies in his first count, Section 1985(1), is indeed broad, providing:
If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Thus, to properly allege a claim under Section 1985(1), Vindman need not allege any racial bias. Rather, he merely needs to “allege four elements: (1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; (4) which overt act was done pursuant to and in furtherance of the common scheme.”
Vindman likely satisfied these pleading requirements in his 73-page complaint alleging an agreement between the defendants to unlawfully intimidate or threaten him from performing his duties as a NSC director and thereafter complying with congressional subpoenas and testifying as part of the impeachment proceedings. The defendants did this, Vindman alleged, by engaging in “concerted effort to falsely portray Lt. Col. Vindman as disloyal to the United States, as a spy for a foreign country, and as a politically motivated saboteur,” by, among other things, working with favorable media outlets, such as Fox News and specifically Laura Ingraham.
The complaint further alleged the defendants “conspired to falsely accuse him of leaking classified information and perjury,” again “for the purpose of both intimidating him from testifying in the impeachment proceedings and other proceedings implicating President Trump and continuing to hold his office, and to retaliate against him for doing so.”
The defendants did this, Vindman alleged, “by creating and spreading disinformation that they knew not only would be picked up by anchors at Fox News, but also amplified by other right-wing media outlets and across social media.” As a result of this conspiracy, Vindman alleged he was harmed both in reputation and in his career.
To Deter By Force, Intimidation, or Threat
Vindman also alleged a second count in his complaint based on Section 1985(2) of the Ku Klux Klan Act. Section 1985(2) prohibits conspiracies of two or more people “to deter, by force, intimidation, or threat, any party of witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully.”
Courts have said that Section 1985(2) “prohibits conspiracies to interfere with judicial proceedings in federal court.” Thus, to sue for a violation of this section, “a plaintiff must allege (1) a conspiracy between two or more persons, (2) to deter a party, witness or juror from attending or testifying in any matter pending in any court of the United States, which (3) results in injury to the plaintiff.”
In this case, Vindman argues that the House proceedings constituted a “Court of Impeachment,” and that a Senate trial, if one were held, would likewise qualify the Senate as a “court,” within the meaning of Section 1985(2). While it is possible the district court will agree with Vindman, calling the House or Senate a “court of the United States” seems a stretch, meaning the defendants will likely succeed in obtaining a quick dismissal of the Section 1985(2) claims.
Conversely, Vindman’s claim under Section 1985(1) will likely survive for now because the court must assume the facts, as alleged, are true.
Discovery Will Be Lit
While Vindman may achieve an early victory in this case, first with the positive PR he is garnering and second by fending off any attempt by the defendants to have the case immediately tossed as frivolous, he may soon regret his decision to sue.
Unlike the House proceedings in which Schiff and other defendants ran cover for Vindman, allowing him to refuse to respond to relevant questions, federal discovery will not be so limited. And there will be much the defendants will want to know, such as with whom Vindman discussed the telephone call.
The defendants will also be entitled to question under oath a variety of other witnesses, including the whistleblower. Questions of Vindman’s bias will be fair game as well. Then there will be evidence the defendants will seek to gather to establish Trump had legitimate concerns about Hunter Biden’s involvement with the corrupt Ukrainian company Burisma.
In short, Vindman might just give Trump the impeachment trial he needed, with the witnesses he needed, to establish Vindman worked with the whistleblower and the whistleblower with Schiff to launch the Ukraine hoax.
While it will be some time before discovery proceeds in this case, we are already discovering more details about the Biden-Ukrainian connection. And the timing of the release of that information couldn’t have been worse.
Just hours before USA Today hit the newsstands and Vindman’s attorneys filed his complaint, John Solomon reported that Just the News had just obtained a copy of a November 22, 2016, email sent by George Kent, the former U.S. embassy official in Kiev, to top State Department officials in the Obama-Biden administration. Kent is one of the two individuals Vindman discussed Trump’s telephone conversation.
In the email, Kent wrote, “The real issue to my mind was that someone in Washington needed to engage VP Biden quietly and say that his son Hunter’s presence on the Burisma board undercut the anti-corruption message the VP and we were advancing in Ukraine.”
“Kent’s email described an intense pressure campaign by advocates for Burisma — including a former U.S. ambassador — to rehabilitate the Ukrainian company’s corrupt reputation and to get Ukraine prosecutors to drop their criminal investigations of the company,” Solomon explained in his article that broke late Tuesday night.
Further, as Solomon wrote, in the email, Kent “relayed to higher-ups that he had confirmed with Ukrainian prosecutors that Burisma officials had paid a $7 million ‘bribe’ to make one of the cases against the company disappear. The bribe was allegedly paid at a time when Hunter Biden was serving on the Burisma board, a job that landed his firm more than $3 million from the Ukrainian energy company.”
Just the News had long been seeking this and other emails through a Freedom of Information Act Request, but for five years, “the State Department failed to acknowledge the existence of the document to the court or to Just the News in its multiple Freedom of Information Act lawsuits against the State Department seeking records on Hunter and Joe Biden’s dealings in Ukraine,” Solomon explained.
The now-public email solidifies Trump’s concerns about the Bidens’ connections to Ukraine and possible corruption. That the State Department has withheld it for so long is especially troubling given Kent served as one of the Democrats’ key witnesses in the House’s first impeachment of former President Trump.
Kent’s email also strikes a sharp contrast to Vindman’s allegations that made news less than 24 hours later. In his complaint, after noting that “Trump zeroed in on former Vice President (and now President) Joseph Biden as his chief rival for re-election in 2020,” Vindman framed the Hunter Biden-Burisma scandal as non-existent, alleging: “President Trump and his allies seized on Hunter Biden and his position as a board member for the Ukrainian oil and gas company Burisma, and used allegations regarding Hunter’s efforts to leverage his relationship with his father for personal profit as a basis for attacking Vice President Biden.”
We now know, though, that it wasn’t just President Trump and his allies concerned about Hunter’s relationship with Burisma, but also top officials in the Obama State Department. Again, discovery is going to be lit.