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 reporter for Bloomberg Politics

“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.

Fein became a fixture at paleoconservative events—the smartest guy in the room, the one who had a quote from John Adams for any occasion. When Ron Paul announced his final presidential bid, Fein quickly endorsed him. When Sen. Rand Paul was criticizing the use of force in Libya, Fein was drafting articles of impeachment. “If that level of oppression justifies war unilaterally,” he told Alex Jones, “we’ve got about 80 countries standing right behind Libya.”

By the time Fein joined Sen. Paul for the NSA announcement, 2013 was becoming his milestone year. Lon Snowden, the father of the whistleblower, called Sen. Paul’s office to talk about the growing circus. Snowden was encouraged to work with Fein. The attorney was suddenly, expertly shepherding his clients through the green rooms of This Week and Anderson Cooper 360.

It didn’t last. Fein represented Lon Snowden, but many press requests were routed through Mattie Fein. She insisted that Edward Snowden’s allies, chiefly Glenn Greenwald, were exploiting him. The younger Snowden encouraged his father to dump the Feins, while issuing a statement to make clear that “neither my father, his lawyer Bruce Fein, nor his wife Mattie Fein represent me in any way.” One month later, in late September, Lon Snowden terminated his relationship with his attorney. Fein didn’t take it well, but he didn’t blame his ex-wife.

“The belated unity of my former client, Ben Wizner, and Glen [sic ]Greenwald seems a desperate effort to bolster their relevance to Ed Snowden,” Fein told reporter Michael Calderone. “I regularly remind myself that Socrates struck the mightiest blow for freedom of inquiry in the history of mankind [by] taking the hemlock in Athens according to its laws, not fleeing elsewhere.”

And Fein had a client who wasn’t fleeing. He had Rand Paul. In the winter of 2013, Fein worked with other attorneys to craft Paul’s lawsuit against the NSA. According to Mattie Fein, who provided an invoice, her ex-husband worked for 201.99 hours on the NSA brief. He charged only two-thirds of his normal $700-per-hour rate for work like reviewing the 1978 FISA amendments (six hours), meeting with NSA expert James Bamford (10 hours), and reviewing committee hearings. The bill added up to nearly $47,000.

By Jan. 15, as first reported by Dana Milbank, Fein had produced a draft that ended up looking like the suit filed by Paul and Cuccinelli. It had been two weeks since Cuccinelli was announced as the attorney on the finished suit. Mattie Fein insists that her husband was dumbstruck. “He wasn’t even told that they were filing it on Wednesday.”

Bruce Fein stayed silent. Mattie Fein did not. On Wednesday she carried out guerilla warfare against Cuccinelli, supplying reporters with her evidence that Cuccinelli—not even licensed to practice in D.C.—was peddling someone else’s lawsuit, and suggesting questions that could stump him. The Paul-Cuccinelli-FreedomWorks press conference ended before noon, but by 2 p.m. Cuccinelli was emailing Bruce Fein to ask what had happened.

“Rather pointed questions from media folks have started to arise specifically about you,” Cuccinelli wrote. “Has Mattie perhaps had conversations with her contacts that have inspired such questions[?]”

Mattie intercepted the email and told Cuccinelli to speak to her directly. “What is your explanation for not being able to answer the numerous FISA suits?” she wrote. “LOL I planted that because I know you are dumb as a box of rocks.”

Paul had planned to hold a conference call about the lawsuit. It was canceled. Early on Wednesday evening, Milbank ran with the story that Paul had been accused of plagiarizing his lawsuit and had never paid Bruce Fein.

“Untrue,” said Doug Stafford, executive director of RANDPAC, when asked about the story. “Bruce was one of several attorneys. And he was paid.”

On Thursday morning Stafford forwarded reporters an email from Bruce Fein himself. “Mattie Lolavar was not speaking for me,” wrote the attorney, pointedly using his ex-wife’s maiden name. “Her quotes were her own and did not represent my views. I was working on a legal team, and have been paid for my work.”

If Bruce Fein is lucky, the decision to cut ties with Mattie will end the story. It just comes a little late. The Snowden case was a highlight, maybe the highlight, of his career, and the alliance with the Pauls won him a loyal following and a large audience. He could patch up those relationships. His friends certainly want him to. But as Rand Paul’s national profile rises, some people can’t rise with it.

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