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Say you’re Ken Cuccinelli. You’ve recently lost the Virginia governor’s race to Terry McAuliffe, of all people. You’ve given up your post as America’s most litigious state attorney general. A good chunk of the GOP establishment resents your hyper-conservative crazy talk for damaging the brand. Yet another snowstorm is bearing down on the nation’s capital in what has been a particularly cold and miserable winter—and despite this, most Americans still believe that global warming is a real thing. How on earth do you pull yourself out of this funk?
Sue the president, of course! And the Director of National Intelligence! And the heads of the FBI and NSA! And anyone else you can think of who might know anything about the massive government spying program that Edward Snowden revealed to such great effect. And to guarantee public attention (because, really, at this point, why should anyone be paying attention to you?), file the suit on behalf of someone vastly more popular than you—for instance, libertarian nerd-chic rockstar and 2016 presidential hopeful Rand Paul.
So it was that, late Wednesday morning, Cuccinelli and Paul stood before a gaggle of political reporters on the freezing plaza outside the E. Barrett Prettyman district court house, a vaguely Soviet-looking box of a building just a couple of blocks west of the Capitol, to tout their freshly filed complaint against a government gone wild in its violation of the Fourth Amendment. In his brief remarks, Paul cited the “huge and growing swell of protest” against the government’s overzealous monitoring of its own citizenry. To illustrate what he predicts will be “a historic lawsuit”—a class action complaint on behalf of every American citizen who has used a telephone in the past seven-plus years—Paul brandished two fistfuls of cell phones (including one with an especially snazzy leopard-print case). Considering the hundreds of millions of Americans who use phones, he noted gravely, this case “may well be the largest civil action lawsuit on behalf of the Constitution.”
Paul and Cuccinelli did not stand alone, physically or metaphorically. The Tea Partying libertarians at FreedomWorks are co-plaintiffs in this case, and a couple dozen of the groups’ young ground troops had been milling about in the cold for the past hour, chanting and snapping pics and generally lending some pep to the proceedings. After Paul got the presser rolling, FreedomWorks president Matt Kibbe, characteristically hipsterish in his black-rimmed specs and blade-like sideburns, offered his take. “This is one of the most important things my organization has been involved in,” he asserted. “This isn’t a Republican vs. Democrat issue. It isn’t about the Obama administration. The government has crossed a line.” Kibbe then assured everyone that FreedomWorks was going to “put that genie back in the bottle.”
As lead counsel, Cuccinelli fielded questions about the legal whys and hows of the suit. Yes, he is optimistic that this will go all the way to the Supreme Court. No, he does not expect it to be tried in conjunction with a similar suit brought by Larry Klayman, the lawsuit-happy conservative gadfly who has a similar complaint wending its way through the courts. Is he worried about “standing”—that is, showing that his clients have themselves been injured and so have the legal right to file this complaint? Don’t be ridiculous! “If you use a phone—and both my clients do—then they are injured by the gathering of this information,” he insisted. Most fundamentally, why exactly are Paul et al even bothering with this crusade when there are multiple other suits already farther along in the pipeline? “The other cases thus far are on behalf of individuals,” explained Cuccinelli. “That does not provide relief for every American using telephones.” By contrast, this class action seeks not only to end the data collection but also to compel the government to purge its databases of all info amassed since 2006. In other words: When Paul wins, we all win!
And make no mistake, Senator Paul has his eye on winning—though political watchers suspect he is focused on a juicier prize than some random lawsuit, even a constitutionally “historic” one. It has, for instance, been repeatedly noted that Paul’s online effort to gather the signatures of Americans upset by the NSA’s spy games will yield a fat database of like-minded voters that could be usefully mined for, say, a presidential campaign.
As for Paul’s new BFF, bringing Virginia’s lightning-rod ex-AG on board with this case makes better political sense than legal sense. Not to question Cooch’s legal chops, but surely Paul had his pick of Fourth Amendment geniuses. In fact, Paul and Cuccinelli are currently embroiled in a nasty spat with former Reagan administration attorney Bruce Fein—who spent the past several months working with Paul on this complaint before being unceremoniously jettisoned for Cuccinelli.
It’s not just that Fein’s people are ticked that Cuccinelli has taken over the case; they are accusing the former AG of appropriating huge chunks of a legal brief previously written by Fein. As Fein’s spokesman (and ex-wife) Mattie Fein fumed to the Washington Post on the very day of the presser, “I am aghast and shocked by Ken Cuccinelli’s behavior and his absolute knowledge that this entire complaint was the work product, intellectual property and legal genius of Bruce Fein.” Testy emails have been zipping back-and-forth between Teams Paul, Cuccinelli, and Fein, complete with finger-pointing and name calling. In one, Mattie, somewhat indelicately, called Cucinnelli “dumb as a box of rocks.” Bottom line, she told the Post, “Ken Cuccinelli stole the suit.”
From a political perspective, however, one can easily imagine why Paul would value this particular box of rocks. While the senator already has the love and trust of the GOP’s small-government enthusiasts, he needs to do some serious wooing of its social conservatives. Thus, for example, his recent efforts to revive the Clinton scandals of the 1990s. So who better to ally himself with in his current undertaking than anti-abortion, anti-gay-rights champion Cuccinelli? For many of the same reasons that Virginia women gave their AG the cold shoulder in November’s gubernatorial election, Republican “values voters” love the guy. Paul’s making common cause with Cuccinelli could help soothe some of the base’s suspicions regarding the libertarian senator’s moral fitness.
Not to suggest that the senator isn’t genuine in his outrage over the NSA’s antics. Those Paul men are nothing if not consistent in their small-government passions. But if linking arms with Cooch in this crusade happens to serve Paul’s broader political aims, where’s the harm? (Unless you’re Bruce Fein, of course.)
Certainly, Cuccinelli seems happy with the arrangement. At Wednesday’s presser, after Paul bid the media farewell to return to his senate duties, the former AG hung around to answer additional questions. As the TV camera guys broke down their equipment and the FreedomWorks activists began drifting back down Constitution Ave., Cuccinelli lingered on the plaza, surrounded by a tight circle of reporters. Nothing takes the sting out of a frigid winter day like a warm bath of attention.
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