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Milbank: Rand Paul and the purloined lawsuit

First Published Feb 14 2014 11:23 am • Last Updated Feb 14 2014 11:23 am

Sen. Rand Paul, R-Ky., has been caught using purloined passages in several of his speeches. Now the aspiring presidential candidate stands accused of filing a lawsuit stolen from its author.

Since December, the libertarian lawmaker, a tea party favorite, had been working with former Reagan administration lawyer Bruce Fein to draft a class-action suit seeking to have the National Security Agency’s surveillance of telephone data declared unconstitutional.

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But when Paul filed his suit at the U.S. District Court in Washington on Wednesday morning, Fein’s name had been replaced with that of Ken Cuccinelli, the failed Republican gubernatorial candidate in Virginia who until last month had been the state’s attorney general. Cuccinelli has never argued a case in that courthouse, and he isn’t even a member of the D.C. bar (he also filed a motion Wednesday seeking an exception to allow him to argue this case in D.C.). But he is, like Paul, a tea party darling.

Fein, who has not been paid in full for his legal work by Paul’s political action committee, was furious that he had been omitted from the filing he wrote. "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," Mattie Fein, his ex-wife and spokeswoman, told me Wednesday. "Ken Cuccinelli stole the suit," she said, adding that Paul, who "already has one plagiarism issue, now has a lawyer who just takes another lawyer’s work product."

After the morning news conference announcing the suit, Cuccinelli told me that "Bruce Fein will be brought in later."

But a Jan. 15 draft of the complaint written by Fein has long passages that are nearly identical to those in the complaint Cuccinelli filed Wednesday. Except for some cuts and minor wording changes, they are clearly the same documents.

For example, Fein’s version said, "When the MATP was disclosed by Edward Snowden, public opinion polls showed widespread opposition to the dragnet collection, storage, retention, and search of telephony metadata collected on every domestic or international phone call made or received by citizens or permanent resident aliens in the United States."

Cuccinelli’s version said, "Since the MATP was publicly disclosed, public opinion polls showed widespread opposition to the dragnet collection, storage, retention, and search of telephone metadata collected on every domestic or international phone call made or received by citizens or permanent resident aliens in the United States."

Fein wrote: "On information and belief, Defendants’ Mass Associational Tracking Program since its commencement in May 2006 has not stopped or been instrumental in stopping even one imminent international terrorist attack or has otherwise assisted Defendants in achieving any time-sensitive objective."

Cuccinelli’s version: "Upon information and belief, since its commencement in May 2006, Defendants’ Mass Associational Tracking Program has not stopped or been instrumental in stopping even one imminent international terrorist attack or otherwise assisted Defendants in achieving any time-sensitive objective."


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The unceremonious jettisoning of a constitutional lawyer in favor of the man best known for his unsuccessful suit to have Obamacare declared unconstitutional suggests that Paul’s legal action has more to do with politics than the law. And there are other clues. In Fein’s version, Sen. Mark Udall, D-Colo., was listed as a plaintiff along with Paul, but in the final complaint the Democrat was gone and the tea party group FreedomWorks was added in his place. Both suits list as defendants the director of national intelligence, the FBI director and the director of the NSA, but Fein’s version had named the defense secretary and the attorney general. Cuccinelli’s version dropped those two but added President Obama as a defendant, an incendiary change.

A Paul adviser said Fein was paid $15,000 and that "multiple attorneys" were involved in the complaint. Behind the scenes, Paul’s team reacted angrily to Fein’s accusations.

Doug Stafford, Paul’s top political operative, sent Fein an email Wednesday afternoon saying he expected Fein would be involved in the future, but he criticized Fein for complaining publicly. "That is crazy and makes no sense if your interest is to work as part of the team. None," he wrote.

Cuccinelli, meanwhile, complained in a separate email to Fein that "our clients don’t want the lawyers to become the story."

When Mattie Fein responded in an email to Cuccinelli calling him "dumb as a box of rocks," Cuccinelli wrote another email to Bruce Fein saying, "I think this relationship is untenable."

Paul, for his part, canceled plans to have an afternoon conference call with reporters.



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