The case of the day is Democratic National Committee v. Russian Federation (S.D.N.Y. 2019). I’ve written about the case several times before (for instance, these posts on the FSIA issues, this one on serving process on Wikileaks, and this one on serving process on Julian Assange while he was still holed up in the Ecuadoran embassy in London). In today’s post I’m going to deal only with the fate of the claim against Russia itself to avoid unwisely commenting on a current case in my firm; my partners Caroline Polisi, Jeff Alexander, and Chris LaVigne represent George Papadapolous in the case, with help from our excellent associates Shira Feldman and John Dillon. (Congrats on the win, guys!)
The claim against Russia had to do with the Russian hack of the DNC. The closest question was whether the hack came within the noncommercial tort exception to foreign sovereign immunity in light of the “entire tort” rule (the doctrine that the “entire tort” must take place in the United States; it is not enough that the tort has a direct effect here). As I suggested in a prior post, the issue is similar to the issue the D.C. Circuit faced in Doe v. Ethiopia back in 2017. The intent was formed, and at least some of the conduct that led to the hack, took place abroad. The DNC also suggested the commercial activity exception applied, but the court reasoned that an illegal military cyber-strike is not a commercial activity.
All of this seems pretty clearly correct, and yet from a political perspective it may make you want to tear your hair out. “The remedies for hostile actions by foreign governments are state actions, including sanctions imposed by the executive and legislative branches of government,” says the judge. True, but when the executive and legislative branches fail to do their job, the American people should know that the judiciary is not coming to save them.