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On Wednesday, Donald J. Trump for President provided a remarkable response to a lawsuit that accuses the campaign of conspiring with Russians to publish emails stolen from the Democratic National Committee.
In a motion to dismiss, Trump’s lawyers write, “This lawsuit threatens to interfere with the President’s ability to discharge his duties. The President occupies a ‘unique position in the constitutional scheme.’ Clinton v. Jones, 520 U.S. 681, 698 (1997). His ‘responsibilities’ are ‘so vast and important’ that he must ‘devote his undivided time and attention to his public duties.’ Courts therefore have an obligation to ensure that private plaintiffs do not use ‘civil discovery’ on ‘meritless claims’ to compromise his ‘ability to discharge’ his ‘constitutional responsibilities.’ It is obvious that Plaintiffs plan to do just that here.”
“Worse,” the Trump court brief continues, “this lawsuit threatens to interfere with a pending criminal investigation. Special Counsel Robert Mueller is investigating coordination with Russia during the 2016 campaign and must already coordinate with congressional committees to ensure that they do not interfere with each other’s investigations. A parallel civil case, with parallel discovery proceedings, handled by a group of self-appointed private investigators, will surely interfere with those efforts.”
The plaintiffs in the lawsuit are former DNC staffer Scott Comer and two party donors, Roy Cockrum and Eric Schoenberg, who allege being the target of threats and credit-card fraudsters after their information became public.
What has gathered our interest is the asserted privacy invasion claims arising from WikiLeak’s publication of stolen emails. In some ways, putting the Russia connection aside for a moment, the Cockrum lawsuit has some similarities to Hulk Hogan’s privacy lawsuit against Gawker for publishing a sex tape. That case resulted in the downfall of Gawker, with some of the constitutional issues never being dissected on appeal.
Might this Trump case address some ambiguities in the law?
First, a judge must rule whether the DNC plaintiffs have established jurisdiction and have sufficiently stated claims. Trump’s brief argues that plaintiffs have sued in the wrong court and fall short on pleading requirements.
Trump’s brief is worth attention not only because of the asserted shortcomings in a failure to establish a connection between his presidential campaign and the Russians, but also because it gets into an interesting area of First Amendment law — one we explored when discussing whether Rachel Maddow was in trouble for disclosing Trump’s tax returns. (Ironically, Trump says the plaintiff’s complaint foreshadows a “fishing expedition” into his tax returns.)
Here, Trump is apparently attempting to convince a DC federal judge that the First Amendment protects disclosures about public issues. It might be surprising to hear Trump articulate this view.
“Plaintiffs’ principal claim, public disclosure of private facts, requires them to show ‘(1) publicity, (2) absent any waiver or privilege, (3) given to private facts (4) in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person,'” states the Trump brief. “This theory of liability, which punishes truthful disclosures, clashes with elementary free-speech principles.”
Trump’s lawyers say the claims fail because the WikiLeaks publication concerned something newsworthy.
“Under tort law, one element of public disclosure is that ‘the public has no legitimate concern’ in the disclosed information,” the brief continues. “A publisher thus faces no liability ‘when its publication is “newsworthy”; that is, when it concerns facts of legitimate public interest.’ That is so even if the publisher or its source stole the information.”
Even if the publisher or its source stole the information. We’re repeating it for emphasis and lest there be any mistake about what’s happening here, Trump’s lawyers are leaning on some of the most news-friendly legal precedent out there. That would be Bartnicki v. Vopper, a 2001 Supreme Court opinion, as well as New York Times Co. v. United States, a 1971 Supreme Court decision giving newspapers the right to print the stolen Pentagon Papers. Both cases are explicitly cited.
“The DNC emails deal with newsworthy and public issues,” states the Trump motion. “That defeats tort liability and fulfills the first part of the test for First Amendment protection.”
Below is the full court filing. Additionally, Trump has filed a motion premised on D.C.’s anti-SLAPP Act, a statute meant to deter friviolous impingements of First Amendment activity. His campaign is doing so in federal court despite some controversy there.
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