Inside the Strange Case of Rand Paul’s Supposedly Plagiarized Lawsuit Against the NSA

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Feb. 13 2014 6:55 PM

Who Sues for Rand Paul?

Inside the strange case of the senator's supposedly plagiarized lawsuit against the NSA. 

Republican Senator Rand Paul of Kentucky talks with a staff member as he walks to participate in a cloture vote.
Rand Paul, plagiarist?

Photo by Saul Loeb/AFP/Getty Images

It started, like most disasters, with a sense of triumph. On June 13, 2013, Sen. Rand Paul finished a breakfast speech for social conservatives and headed across town to meet with the ACLU. Paul was going to act on information revealed by Edward Snowden by suing the National Security Agency. His plan was to “challeng[e] the constitutionality” of the court order that allowed the government to pull the records of Verizon phone calls.

David Weigel David Weigel

David Weigel is a Slate political reporter. 

“Americans are rightly concerned about having all of their phone records collected and monitored all of the time,” said Paul, holding up his own, compromised smartphones for the clicking cameras. “Today, we’ve gathered some of the nation’s leading advocates of civil liberties to say: Enough’s enough. We want our Constitution back.”

Paul spoke first, followed by some likeminded Republican congressmen, the ACLU’s Laura Murphy, FreedomWorks’ Matt Kibbe, and finally Bruce Fein, who was introduced as a former associate deputy attorney general under Ronald Reagan. Fein had only had that specific job for a year. He’d worked with Paul for much, much longer, at least since his father, Ron Paul, started running for president in 2007.

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“Sen. Rand Paul deserves a salute for his courage in standing up for the Constitution in the same manner of our Founding Fathers,” said Fein in his assured voice that registers somewhere between nasal and reedy. “It’s an uphill battle, because we’ve become so powerful—we have a psychology of empire, big government everywhere, because we have to go abroad in search of monsters to destroy.” Fein delivered a pocket history of the Fourth Amendment, from the reaction to the British “writs of assistance” to the words of John Adams and James Otis, and finally to remarks by William Pitt the Elder.

“The poorest man,” quoted Fein, “may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storms may enter, the rain may enter, but the King of England cannot enter! All his forces dare not cross the threshold of the ruined tenement.” Close quote. “That was the spirit of the Fourth Amendment!”

Reporters sat dazed as Paul took back the microphone. “Well,” said the senator, “if we had our glasses, I’d say we raise a toast now to Pitt the Elder!”

Eight months later Paul filed the lawsuit on behalf of all those people who signed up via his RANDPAC. He filed it in person, at the U.S. District Court, before walking between a vinyl FreedomWorks backdrop and several dozen reporters grimacing in the cold. Lead attorney Ken Cuccinelli was there to answer questions. Bruce Fein wasn’t. He wasn’t on the case anymore. Hours later Paul and Cuccinelli were being accused of “plagiarism.”

The story of how Bruce Fein stopped being the de facto solicitor of the libertarian movement is a bit of a sideshow. Paul’s lawsuit was an international story; Fein’s absence, which blew up into a fight about whether the lawsuit was stolen intellectual property, was a he-said-she-said that played out across a few offices in Washington. On Wednesday, Fein’s ex-wife Mattie was answering emails and media calls on his behalf. On Thursday she left this role after what she called “a post-marital fight.”

It’s the latest and strangest example of Paul’s challenge: managing the Republicans who want to share his brand without alienating the people who made his (and his father’s) movement. Fein was definitely one of the founding partners, with decades of experience arguing that unpopular or unfair-seeming decisions were deeply rooted in the Constitution.

In the Reagan years, Fein defended a regulation that allowed employers to discriminate against people with AIDS. It was “akin to discrimination against persons who are left-handed or red-haired; it may be irrational, but Congress has not yet made it illegal.” In the early Bush years, Fein argued that Saddam Hussein should be killed without a trial, even if that violated the law. “All laws are matters of degree,” he wrote, “even the rule of law. James Madison lectured in Federalist 51: ‘Justice is the end of government. It is the end of civil society.’ ” In the years between, he lobbied for the government of Sudan.

Fein found a higher calling in 2007, when he started focusing, almost exclusively, on the outrages of the Bush administration. In columns for Slate, he argued for the impeachment of Dick Cheney and at least an impeachment inquiry for George W. Bush, because of his “apparently criminal spying.”

Suddenly, Democrats were inviting Fein—an old hand from the Reagan administration!—to take Bush apart in their oversight hearings. Suddenly, and more importantly, he entered the orbit of the Pauls. Fein gave a 25-minute speech decrying the “utopian” foreign policy of Bush at Paul’s “Rally for the Republic,” a daylong celebration of his 2008 primary campaign, held in Minneapolis while Republicans met in St. Paul.

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