Back in May 2018, a lawyer for the Trump campaign stood before a federal judge and cheerfully hinted at a version of the same argument that Rudy Giuliani had suggested repeatedly to the public: Even if the Trump campaign did collude with the Russians, so what?
The lawyer’s point was that any “collusion” between the campaign and Wikileaks or the Russian government regarding the release of hacked emails would constitute protected First Amendment activity. The case, Cockrum v. Trump, was soon dismissed from the U.S. District Court for the District of Columbia for unrelated reasons: lack of jurisdiction and venue. Now, the plaintiffs have refiled their case in the Eastern District of Virginia—and the Trump campaign is renewing this argument. On Tuesday, Oct. 9, it filed a motion to dismiss, making the case that, as Giuliani likes to say, “collusion is not a crime,” indeed that it’s protected by the First Amendment.
The plaintiffs, a DNC employee and two Democratic Party donors, are suing over the disclosure of their private information in material published by Wikileaks following the DNC hack. (Full disclosure: Protect Democracy, the group representing the plaintiffs, also represents Lawfare contributors and editors Benjamin Wittes, Jack Goldsmith, Scott Anderson and Susan Hennessey on a number of separate matters.) Their claims include state tort claims for public disclosure of private fact and intentional infliction of emotional distress, along with a common law claim of civil conspiracy and a claim under 42 U.S.C. 1985(3), a Reconstruction-era statute prohibiting the intimidation of voters. The action rests on the argument that the Trump campaign entered into an agreement with “agents of Russia and Wikileaks” to distribute the hacked DNC material in a manner maximally beneficial to Trump’s presidential prospects.
The First Amendment argument made by the Trump campaign in its brief on its motion to dismiss contends that any such “collusion” is, legally speaking, no different from journalism. Citing Bartnicki v. Vopper, the campaign argues that a speaker maintains a First Amendment right to disclose “even stolen information …so long as (1) the speaker did not participate in the theft and (2) the information deals with matters of public concern.” That is, even assuming a relationship between the campaign and Wikileaks or Russian agents that might fit the bill of “collusion,” this behavior would be protected under Bartnicki—because the facts alleged by the plaintiffs involve coordination after the hacking, not beforehand. Coordination on distributing the benefits of an informational theft, on this reasoning, is different from “participat[ing] in the theft” for First Amendment purposes. As Floyd Abrams has argued at Just Security, any evidence that the Trump campaign coordinated with Wikileaks in advance of the hack would undercut this argument.
The question of whether the disseminated material constituted a matter of public concern under Bartnicki has less to do with collusion, but it will certainly be challenged by the plaintiffs: the initial complaint wrote that the information disclosed, which included social security numbers, “was not of any relevance to the political campaign or at all newsworthy.”
As with the argument made by Trump campaign counsel Michael Carvin in May, what is jarring here is less the First Amendment reasoning itself and more the political audacity of the argument. In briefing the motion to dismiss, the campaign is not arguing “NO COLLUSION!!!” but something closer to “WHO CARES IF THERE WAS COLLUSION???”—which is not exactly what Trump tweets:
Collusion is not a crime, but that doesn’t matter because there was No Collusion (except by Crooked Hillary and the Democrats)!
— Donald J. Trump (@realDonaldTrump) July 31, 2018
Here’s the brief: