Law DNC Loses Racketeering Suit Over 2016 Election Hack

MANHATTAN (CN) — Hours before the Democratic presidential debates, a federal judge dismissed the Democratic National Committee’s lawsuit that accused the Trump campaign, the Russian Federation, WikiLeaks and others of interfering in the 2016 elections.

“The primary wrongdoer in this alleged criminal enterprise is undoubtably the Russian Federation, the first named defendant in the case and the entity that surreptitiously and illegally hacked into the DNC’s computers and thereafter disseminated the results of its theft,” wrote U.S. District Judge John Koeltl, a Clinton appointee.

Before weighing the evidence against Russia, however, Koeltl found that the Foreign Sovereign Immunities Act foreclosed him from holding it liable the DNC server hack.

The DNC blamed a host of secondary actors in a conspiracy, including Russian-linked Maltese academic Joseph Mifsud; oligarchs Emin and Aras Agalarov; and Trump family members and campaign figures like Donald Trump Jr., Jared Kushner, Paul Manafort, Rick Gates, George Papadopoulos and Roger Stone.

Finding these claims likewise unconvincing, Koeltl ruled that the U.S. Constitution protected them from liability related to disseminating stolen emails.

“The First Amendment prevents such liability in the same way it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place,” the 81-page opinion states.

Citing precedent from the the Pentagon Papers case, Koeltl held that treating WikiLeaks as an accomplice “would render any journalist who publishes an article based on stolen information a co-conspirator in the theft.”

“If WikiLeaks could be held liable for publishing documents concerning the DNC’s political financial and voter-engagement strategies simply because the DNC labels them ‘secret’ and trade secrets, then so could any newspaper or other media outlet,” the opinion states. “But that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern. The DNC’s published internal communications allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election. This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers.”

WikiLeaks and its founder Julian Assange argued last year that the DNC’s lawsuit threatened freedom of the press. Columbia University’s Knight First Amendment Institute, Reporters Committee for Freedom of the Press, and the American Civil Liberties Union echoed those concerns in a friend-of-the-court brief.

Joshua Dratel, an attorney for WikiLeaks, applauded Koetl’s ruling.

“It reaffirms some important First Amendment principles that apply to journalism across the board, regardless of whether you’re a powerful institution or a small independent operation,” Dratel said in a phone interview.

Attorneys for the Trump campaign, Kushner, Manafort and Stone did not immediately respond to requests for comment.

The Agalarov family, whose entanglements in Trump’s Miss Universe pageant and the Trump Tower meeting took focus in the lawsuit, expressed a desire to put the lawsuit behind them.

“The Agalarovs are pleased with the court’s decision and hopeful that it will bring an end to this saga,” their attorney Scott Balber said in an email.

Judge Koeltl dismissed the lawsuit without leave to refile. DNC spokeswoman Adrienne Watson and its attorney Joseph Sellers did not immediately respond to requests for comment on whether they would pursue an appeal.

Papadopolous’ attorney Caroline Polisi reiterated her position from oral arguments that the allegations against her client were “anemic and bordered on the absurd.”

“As we argued in our motions to dismiss and oral argument, the DNC’s case was nothing more than an attempt to re-write history, in the face of incontrovertible evidence to the contrary,” Polisi said in an email.

The Trump campaign sought to sanction the DNC for continuing to pursue the lawsuit after special counsel Robert Mueller did not establish a criminal conspiracy with Russia. The Democrats noted that civil liability is a lower standard, and Mueller documented copious ties between the Trump campaign and Russia.

Declining to wade into that controversy, Koeltl rejected sanctions and did not consider the Mueller report in his ruling.

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I know not everyone trudges through the TDS thread since it's a bit enormous, so I wanted to toss this out here into its own thread. TL;DR: A Federal judge just dismissed the DNC's lawsuit against the Trump campaign, Russia, WikiLeaks, etc. with prejudice. Judge Koeltl cited the Pentagon Papers case in finding that there could not be liability for the publication of stolen materials. This is probably the most-important part of the ruling:

"If WikiLeaks could be held liable for publishing documents concerning the DNC’s political financial and voter-engagement strategies simply because the DNC labels them 'secret' and trade secrets, then so could any newspaper or other media outlet. But that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern. The DNC’s published internal communications allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election. This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers.” ​

Do you want to know the best part? Judge Koeltl was appointed by Bill Clinton and is part of the SDNY.

 

[Skin and Bones]

Good for that judge. You can't sue someone just because they published something they got under the table, or you'd have to retroactively condemn all the whistleblowers and document leakers in the past that got off.

 

[Far Queue]

Good. Now they can find some way to make trade secret law compatible with the 1st.

That would be a much tougher sell. While you can certainly argue that the public has every right to be interested in the political process as well as the government which is supposed to ultimately be responsible to the people, it's a much more difficult claim that the public has any real interest in how much Joe's Widgets wants to charge Jane's Doohickeys for some component or who they're using sourcing material from unless there's some element of criminal activity involved.

Should we similarly apply the first amendment in that way to private health information? Why should your doctor lose his or her first amendment right to tell the world about the horrible case of herpes you've got? And why stop there when we can apply it to things like attorney-client privilege and allow, or even demand, your lawyer to tell the public what you actually did.

You can't have a limitless first amendment while also having any expectation of privacy. We've decided that free speech and a free press are good things, but that there are still other rights that conflict with those granted by the first amendment. You ultimately must draw a line between them somewhere.