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; the two men appeared together as early as last June to denounce the NSA’s activities.
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.
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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.
When a reporter at the courthouse news conference Wednesday mentioned Paul’s presidential aspirations, the senator shut him down. “We’re just going to stick with the court case and not politics today,” he said.The rest of the article has in-depth discussion on the similarities between the complaint that Fein helped prepare and the complaint that was ultimately filed.
I have blogged previously on my annoyance at the use of lawsuits as a tool for political gain. This case is one such flagrant example, and Paul's insistence that reporters distinguish the court case from politics is hypocritical.
Paul's lawsuit is particularly infuriating because, as a politician, he could introduce legislative safeguards that could undo many of the harms he complains of. Legislation would arguably be a much more effective approach to take than filing a lawsuit. But the legislative process is not particularly exciting, and it does not give Paul very many opportunities to make broad, imprecise, nice-sounding comments on the unconstitutionality of the government's actions.
All of that said, it is nice to see that Paul has gone too far in politicizing this lawsuit. While the entire suit was political from the beginning, Paul's replacement of Fein with Cuccinelli makes the political nature of this case far more obvious. I hope that this issue continues to draw attention, and that this attention drives Paul to focus his efforts on more productive, legislative goals.