Team Trump’s Implausible Defense Against Collusion

Between September 20, 2016 and July 2017, somebody who controlled the WikiLeaks official Twitter account (presumably Julian Assange), sent a series of direct messages to Donald Trump Jr., the president’s son and namesake. In the following example, it’s fortunate that Donald Jr. did not reply, but it shows very clearly that WikiLeaks was trying to help Trump win and do whatever it could to assure that Hillary Clinton lost.

“Hey Don. We have an unusual idea,” WikiLeaks wrote on October 21, 2016. “Leak us one or more of your father’s tax returns.” WikiLeaks then laid out three reasons why this would benefit both the Trumps and WikiLeaks. One, The New York Times had already published a fragment of Trump’s tax returns on October 1; two, the rest could come out any time “through the most biased source (e.g. NYT/MSNBC).”

It is the third reason, though, WikiLeaks wrote, that “is the real kicker.” “If we publish them it will dramatically improve the perception of our impartiality,” WikiLeaks explained. “That means that the vast amount of stuff that we are publishing on Clinton will have much higher impact, because it won’t be perceived as coming from a ‘pro-Trump’ ‘pro-Russia’ source.” It then provided an email address and link where the Trump campaign could send the tax returns, and adds, “The same for any other negative stuff (documents, recordings) that you think has a decent chance of coming out. Let us put it out.”

It’s highly significant that WikiLeaks was pitching a plan to leak something ostensibly damaging to Trump for the purpose of adding credibility to their claims that they were neutral in the race and to add impact to their anti-Clinton disclosures.

It’s within this context that we should judge the legal defense the Trump team is putting forth now. They’re in court defending against a suit brought by “two of Hillary Clinton’s donors and a former employee of the Democratic party” whose personal information was disclosed by WikiLeaks. The Trump campaign is essentially accused of being an accessory, but they argue that what WikiLeaks did was legal and, as a result, the campaign cannot be accused of abetting or participating in what was not technically a crime.

The Trump campaign argued in a legal filing that WikiLeaks could not be held liable for publishing emails that were stolen by Russian hackers ahead of the 2016 US election because the website was simply serving as a passive publishing platform on behalf of a third party, in the same way as Google or Facebook.

Of course, Facebook and Google don’t solicit what we publish or coordinate in the publication of private information, stolen or otherwise. They operate under the premise that they are “passive publishers,” and that gives them legal protection under the Communications Decency Act. Without that kind of immunity, they’d have to preview all our social media posts before allowing them to be published.

WikiLeaks does receive unsolicited material, but they don’t publish it automatically or without review. For this reason they are not passive publishers, but Trump’s lawyers are pursuing this angle anyway. According to them, under the Communications Decency Act…

“A website that provides a forum where ‘third parties can post information’ is not liable for the third party’s posted information … Since Wikileaks provided a forum for a third party (the unnamed ‘Russian actors’) to publish content developed by that third party (the hacked emails), it cannot be held liable for the publication,” the filing said.

I am not a lawyer, but this argument does not hold water with me. Since WikiLeaks does not play a passive role in what they publish, that would seem to be the end of the argument, but they also didn’t play a passive role in the campaign as evidenced by the communications they had with Donald Trump Jr. detailed above. It is not a serious legal argument that WikiLeaks can rely on the Communications Decency Act to avoid criminal liability for publishing knowingly stolen materials for purely partisan purposes, especially when there are plaintiffs who can show that violations of their privacy have caused tangible harm.

The Trump team might be on more solid footing with their second argument.

The filing also makes the case that, under the campaign’s first amendment right to free speech, it had the right to publish information – even if it was stolen – as long as it did not participate in the theft of the emails. The hacked materials were a matter of “significant public concern”, the filing said.

In this area of the law, things are certainly murky. News organizations, including WikiLeaks (if we’re still willing to grant them that designation), often accept documents and communications which are stolen or classified, and as long as they didn’t instruct a source to go out and illegally procure the information they are on solid legal footing. Likewise, campaigns are free to benefit from information that has been published or to re-publish material even if it was originally unearthed in a criminal way. If, on the other hand, the campaign received stolen goods (for example, Democratic election data) from WikiLeaks that wasn’t otherwise published, that could be judged under a stricter standard.

I’m not well enough versed in the law to parse out all the possible permutations, but it seems like a lot will depend on how what WikiLeaks did (and does) will be construed. The Trump campaign wants to portray them as unwitting participants in a crime, but WikiLeaks knew full well that the materials they were publishing were procured illegally through computer hacking. According to Robert Mueller’s court filings, the Russians chose WikiLeaks to publish the materials specifically to supply them with plausible deniability, and that means that there was a criminal conspiracy. Of course, Assange told us that Seth Rich was responsible for the leak and denied that the Russians played any role. Those were lies, and there’s no reason to believe Assange now if he claims that he was simply unaware that the material he received came from the Russians.

How this plays out may depend on your concern. Someone who was harmed by having their personal information published is in a different position from someone trying to enforce campaign finance law and punish unreported in-kind donations or illegal foreign contributions. If you want to protect free speech and the press’s ability to publish leaked materials, that’s different from if you want to prevent campaigns from coordinating with partisan foreign media organizations to leak materials hacked by hostile foreign intelligence officers.

For now, this is a civil case involving the theft and publication of private information and so the defense is tailored to those accusations. But the defense is still telling. They are saying that they cannot be liable because WikiLeaks did not commit a crime, but their rationale is that WikiLeaks is a passive publisher. They were not.

They also argue that they cannot be part of a criminal conspiracy if they played no role in the original theft, but that is not my understanding of how the law works. If you rob a house and give me valuables to take to the pawn shop, I’m guilty of a crime unless I can plausibly argue that I had no idea that the goods were stolen. Everyone knew the emails and other documents were stolen.

There’s also a distinction both in the law and in general principle between utilizing stolen material procured by domestic partisan sources and utilizing the same kind of material procured by foreign intelligence agencies, whether adversarial or not. We care whether the Trump campaign coordinated with Russia not only because it involved hacking and possible campaign finance violations but because it may now be resulting in a compromised foreign policy and high-ranking officials suffering from blackmail or the threat of blackmail.

As a defense against all of that, arguing that WikiLeaks is indistinguishable from Facebook isn’t going to fly in the courtrooms or the court of public opinion.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.