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A Virginia federal judge has thrown out a lawsuit against Donald Trump’s presidential campaign that alleged his team conspired with the Russians and WikiLeaks to promulgate emails hacked from the Democratic National Committee during the 2016 election.
DNC staffer Scott Comer and two party donors, Roy Cockrum and Eric Schoenberg, brought the lawsuit claiming damages from the publication of stolen documents that had personal information including social security numbers, home addresses and banking relationships.
In reaction to the lawsuit, Trump asserted this case threatened his presidency by potentially interfering with his discharge of duties. However, courts haven’t been receptive to the argument that the U.S. Constitution bars a president from being sued while serving in office. Clinton v. Jones, a 1997 Supreme Court opinion, allowed a civil suit to proceed against Bill Clinton, and on Thursday, a New York appeals court rejected the proposition that the Supremacy Clause shielded the nation’s leader from state court jurisdiction.
U.S. District Court Judge Henry Hudson grants Trump’s motion to dismiss, among other reasons, because the plaintiffs lack a substantive cause of action for conspiracy and have failed to plead viable privacy claims under Virginia law. Here’s the full decision.
Trump’s ultimate victory aside, he doesn’t win on First Amendment grounds, which is important from a media law perspective as questions always come up about the legality of publishing hacked and stolen documents.
In Bartnicki v. Vopper, a 2001 Supreme Court opinion, the high court suggested that when it comes to these sorts of situations, media defendants should get a pass so long as their access to information is obtained lawfully, even if the information itself was intercepted unlawfully by sources. Since then, Bartnicki has been invoked in all sorts of situations from Gawker’s publication of the Hulk Hogan sex tape to ESPN’s disclosure of an NFL star’s injury. Nevertheless, there is some ambiguity involving situations where there’s some knowingness about the illegality of the source, and when there’s active participation, certainly all bets are off.
The latter is what Judge Hudson sees here from allegations, which on a motion to dismiss, have to be assumed as true.
“The Campaign’s First Amendment argument relies heavily on Bartnicki v. Vopper,” writes the judge in the opinion (read here). “Bartnicki is distinguishable from the immediate case in several respects. Here, unlike Bartnicki, the Campaign is alleged to have conspired with the Kremlin and WikiLeaks prior to the information being released and for its own benefit.”
The judge says that the complaint details the interaction between the Trump Campaign and Russian operatives “arrang[ing] for the publication of the stolen information.” The judge adds that descriptions of conversations and meetings between Trump campaign reps and Russian operatives are “more than ample at this point to provide a plausible factual basis for Plaintiffs’ allegation that the Campaign was aware that the stolen information had been unlawfully obtained.”
Then, there’s discussion of Trump’s argument that the First Amendment protects disclosure about public issues including truthful and newsworthy ones about the Democratic Party’s conduct during the presidential primaries.
The judge responds that the record is too scant at this juncture on what was actually disclosed and the injuries incurred. “Aside from a generalized description of the information pertaining to the DNC, its contributors, and the Clinton Campaign, there is very little detail concerning the specific nature of the information or its significance to the political campaign,” writes the judge.
The judge finds that at the early stage of the lawsuit, without the benefit of a more fully informed record, the release of hacked emails from the DNC doesn’t warrant First Amendment protection. This aspect of the decision is mooted by the judge’s other conclusions but nevertheless may be of concern for the media facing future privacy battles where coordination on publication and awareness of unlawful origins becomes an issue. Earlier in the week, for instance, in a separate lawsuit brought by the DNC, various press groups stood up for WikiLeaks. They wrote, “The legal question addressed here is one with significant implications for the free press: does an act of publication that would otherwise be protected by the First Amendment lose that protection simply because a source acquired the published information unlawfully?”
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