Former Virginia Attorney General Ken Cuccinelli and Freedom Watch founder Larry Klayman are spearheading separate lawsuits against the National Security Agency’s dragnet collection of U.S. phone records. The contrarian conservatives may find themselves sitting together in court with their cases consolidated - a prospect Klayman says he welcomes, but which Cuccinelli says isn’t guaranteed.
Klayman filed suit against the phone metadata program in June after exiled whistle-blower Edward Snowden’s initial leaks and won a preliminary victory Dec. 16 from U.S. District Court Judge Richard Leon of Washington, D.C., who found the "almost Orwellian" program "almost certainly" violates the Fourth Amendment. His lawsuit is the most successful against the NSA program to date.
Cuccinelli is lead counsel on a similar suit filed on behalf of Sen. Rand Paul, R-Ky., and FreedomWorks in U.S. District Court on Wednesday in D.C.
Klayman says he is certain the anti-surveillance cases will be combined, citing his experience in the D.C. federal court. “It’s 99.9 percent the judge consolidates the cases and we will be sitting there in court together,” Klayman tells U.S. News. “And we look forward to working with them.”
Klayman believes the lawsuit filed by Cuccinelli will be assigned to Leon, who will decide to hear the two legal teams’ cases in tandem, meaning joint court hearings and rulings.
“The judge is not going to handle two separate class-actions,” Klayman says. “They will be undoubtedly be merged and consolidated.”
Klayman is currently seeking Supreme Court review of the preliminary injunction from Leon, hoping to leapfrog the U.S. Court of Appeals for the D.C. Circuit for rapid resolution of questions about the phone program’s constitutionality. He dropped Verizon as a defendant and discontinued the intended class-action certification of that suit, but then refiled the class-action suit in District Court Jan. 23.
“[The refiled lawsuit] will probably end up being put together with Paul’s,” Klayman says. “Paul kind of copied it, imitated it, and those two cases will probably go in tandem in front of Judge Leon.”
But Cuccinelli, who is not a member of the D.C. bar, tells U.S. News it’s not clear Leon will be assigned to hear the case.
“That gets into the black box of how the court operates itself,” Cuccinelli says. “It’s the same subject matter, so there’s some efficiency in that respect, but I don’t want to speculate on that. We’re not designing our case around [Leon hearing it].”
Both Klayman and Cuccinelli agree the class-action cases will move slowly through the court system, but Cuccinelli says he expects a trial as early as this summer.
Almost immediately after filing the suit that Paul first promised in June, the senator’s legal team was ensnared in a minor controversy. Dana Milbank of the Washington Post reported that Bruce Fein, an attorney who helped draft the lawsuit beginning in December, believed Cuccinelli and Paul plagiarized his work.
The Post quoted Fein’s ex-wife, who the Post identified as his spokesperson, as saying “Ken Cuccinelli stole the suit” without full payment or attribution. On Thursday Fein denied his ex-wife was speaking on his behalf. In an email to Doug Stafford, a senior Paul adviser, that was distributed to the press Fein wrote: “Her quotes were her own and did not represent my views. I was working on a legal team, and have been paid for my work.”
Cuccinelli sees media bias as pervasive and says he's not possessive about credit for the Paul case or about who gets credit for a possible Supreme Court showdown.
“The names don’t even matter,” Cuccinelli says. “What matters is: Do we have the Fourth Amendment protection that most Americans think they have?”
Cuccinelli says he first discussed the lawsuit with Paul in October during a daylong campaign trip around Virginia in support of his Republican candidacy for governor.
Klayman says he was sorry to see the apparent in-fighting among Paul’s legal team. “We all need to hang together or separately we hang, as Benjamin Franklin said,” he says.
There are some differences of opinion between the two leading anti-surveillance lawyers.
Cuccinelli and Paul said at a Wednesday press conference outside the court they believe their lawsuit will be the first lawsuit certified as a class-action complaint against the NSA program. But Klayman doubts that; he expects the cases will either be certified as class-actions at the same time or that his will be certified first.
Klayman is also optimistic that his truncated case - on behalf of himself and two other plaintiffs - will be heard by the Supreme Court and that if that happens, a judgment against the program would affect all American phone records. Cuccinelli says such a scenario would only yield a permanent injunction that would “apply to two people.”
The two lawsuits seeking class-action certification are themselves different. Klayman seeks damages and alleges violations of the First, Fourth and Fifth Amendments. The Paul-Cuccinelli suit only alleges violations of the Fourth Amendment and seeks an injunction ending the program as well as the purging of stored records.
Klayman says he finds some aspects of the Paul lawsuit curious, including its reference to opinion polling. “They wrote it in a very political way, they’re talking about polling and stuff like that,” he says, “[but] polling has no bearing on a court case.”
In addition to the two D.C. cases, the American Civil Liberties Union filed suit in federal court in New York City and the Electronic Frontier Foundation filed suit on behalf of a diverse coalition of advocacy groups in San Francisco federal court. The ACLU case was dismissed Dec. 27 by U.S. District Court Judge William Pauley, but the civil liberties group is appealing. The EFF case hasn’t made it into a courtroom yet.
“We’re not in a race with anybody, we’re just trying to do it right,” Cuccinelli says. “We would like all of the similar cases out there to prevail. Our goal,” he says, “is to vindicate the Fourth Amendment… and whether that is our case or another case is beyond secondary.”