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Cockrum v. Trump

Three Americans are suing the Trump Campaign for violating their privacy and civil rights. They are seeking justice for the Trump Campaign’s role in their hacked, private information being distributed worldwide, and to make sure this never happens to anybody else.

The plaintiffs are a Reagan-era foreign service officer who grew increasingly worried about the direction of our national politics, a staffer who was making good on a lifelong dream to work in Washington, DC for causes he believed in, and a lottery winner who became a philanthropist to spend his winnings for the greater good.

As the complaint lays out, after Russian hackers stole their emails, their private information was published to the world as part of a calculated political strategy in which the Trump campaign played a central role. The result was a gross violation of their rights under federal civil rights law, which prohibits conspiracies to injure Americans because of their participation in a Presidential election. Plaintiffs’ privacy was also invaded in violation of state privacy laws, with their social security numbers, medical information and details of their private lives made permanently public in ways that hurt them all deeply, as it would have any reasonable person.

No American should fear that the consequence of participating in our democracy is that their identity would be stolen or their personal, private information plastered on the Internet for all to see.

Plaintiffs are making the difficult choice to come forward, knowing they will likely face further personal attacks.  They want justice, they want the truth, and they want to prevent this from happening again to someone else.

Press inquiries: press@protectdemocracy.org

Virginia case

Court filings

D.C. case:

Court filings

Q: Who are the plaintiffs and why are they bringing this suit now?

A: The people bringing this suit are three American citizens who participated in the election by donating to a political campaign and working for a political party.  Because of those actions, which are generally considered to be patriotic participation in our democracy, their private financial and personal information was stolen by Russian agents who then, as the complaint lays out, coordinated with Wikileaks and agents of the Trump Campaign to distribute it for political gain. The people who were harmed are bringing this suit before their statute of limitations runs out in order to seek justice and ensure this never happens to anyone else.

Q: What relief are plaintiffs seeking?

A: This suit seeks a remedy for the real harm suffered by the plaintiffs, caused by the coordination to release and disseminate hacked private information for political gain.

Q: What are the claims plaintiffs are bringing?

A: The plaintiffs claim that the defendant, the Trump Campaign, was involved in a conspiracy with Russia and WikiLeaks to release to the world the emails stolen from the DNC by Russian intelligence. That release directly injured the plaintiffs, in violation of a federal civil rights law prohibiting conspiracies to injure citizens who have advocated on behalf of a Presidential candidate. It also violated plaintiffs’ rights under state invasion of privacy law, state law prohibiting the intentional infliction of emotional distress, and state law prohibiting civil conspiracies.

Q: Didn’t President Trump claim he’d already won this case?

A: He did, but as numerous reporters pointed out, he was mistaken. The plaintiffs first filed this case in the United States District Court for the District of Columbia in July 2017. On July 3, 2018, that court dismissed the case on jurisdictional grounds, holding that the District of Columbia was “the wrong forum for plaintiffs’ lawsuit.” The Judge went out of her way in issuing that ruling to state: “it bears emphasizing that this Court’s ruling is not based on a finding that there was no collusion between defendants and Russia during the 2016 presidential election.” Protect Democracy disagreed with that ruling, but has now filed the case in the United States District Court for the Eastern District of Virginia, where the Trump Campaign is incorporated and where therefore the court unquestionably has jurisdiction.

Q: Is this case the same as or related to the case filed by the Democratic National Committee?

A: No. This case is entirely separate. This case was filed in July of 2017 by three American voters who were personally and specifically injured when the Trump Campaign conspired with Russian agents to attack U.S. democracy. The DNC filed a separate case in April 2018 on its own behalf. When President Trump tweeted erroneously about our case, he confused the two cases — perhaps intentionally as he may wish to portray this case as partisan, but it is not. This case was filed by Protect Democracy, a nonpartisan organization that includes both liberals and conservatives.

Q. How does the Trump legal team’s First Amendment argument relate to the Mueller investigation?

A. The Campaign’s First Amendment argument is a preview of how the President and his allies might respond to the findings of the Mueller investigation. Trump and his associates initially— and falsely—denied the Russians sought to interfere in the election.. Then they denied—again, falsely—that they had any contact with Russians. As more and more facts have been revealed about the Campaign’s relationship with the Russian government—it is now clear that there have been more than 80 contacts (that we know of) between the Trump Campaign and Russian agents—Trump and his legal team are trying to shift the goalposts from “we didn’t have contact with Russia” to “we didn’t collude with Russia” to “collusion isn’t a crime.” (We explained why conspiracy, the legally correct term for “collusion,” with a foreign government is a crime here. Brookings has a new paper expanding on that here.) This latest argument—that the First Amendment protects a campaign’s ability to conspire with a foreign government to obtain something of value in exchange for policy concessions—is another step in that evolution. The Campaign’s legal team contends that even if it conspired with a foreign government, but that doing so was protected by the Constitution. As we explain below, they are wrong.

Q. Does the First Amendment apply to the Trump Campaign conspiring with the Russian regime and WIkiLeaks to dump the private information in stolen emails?

A. No, it doesn’t. The First Amendment protects the publication of truthful, newsworthy information. There is no doubt that some of the information published on WikiLeaks was relevant to the public and received significant media coverage. But this case is not about the information that made news, such as the DNC’s relationship with the Sanders campaign. It is about the substantial amount of information released by the Trump Campaign and its co-conspirators that was private and of no legitimate interest to the public—including social security numbers, bank information, medical information, and intimate details about personal relationships. States have long had laws prohibiting the publication of this type of information, and the First Amendment is not a license to publish someone’s purely private information. As the Tenth Circuit Court of Appeals has explained, “the dissemination of non-newsworthy private facts is not protected by the First Amendment.” Gilbert v. Med. Econ. Co., 665 F.2d 305, 308 (10th Cir. 1981).

Q. But if some of the leaked information was newsworthy, doesn’t the First Amendment apply to the entire release of emails?

A. No. Courts have explained that “to properly balance freedom of the press against the right of privacy, every private fact disclosed in an otherwise truthful, newsworthy publication must have some substantial relevance to a matter of legitimate public interest.” Gilbert, 665 F.2d at 308. This rule makes perfect sense in practice. Someone who writes an article about a matter of paramount interest to the public is not entitled to include a social security number in the article (except in the exceedingly rare circumstance that the social security number itself is relevant to the public). A contrary rule would allow anyone to dump on the Internet the contents of the email account of almost anyone engaged in activity of interest to the public, because they could be confident that at least some of the information would be newsworthy.

Q. Could your case limit First Amendment protections for journalists?

A. No, the Trump Campaign can be held accountable without narrowing protections for journalists. The First Amendment will continue to protect the press because the First Amendment protects the publication of truthful, newsworthy information. A journalist who receives information that is of public interest has the constitutional right to publish that information, even if the journalist’s source obtained it through unlawful means.

Consider the ways in which the facts of this case differ from the work of journalists. Journalists publish newsworthy information—they do not publish purely private information that is of no relevance to the public, such as a social security numbers. Nor do journalists actively conspire with a hostile foreign power to secure the release of stolen emails in exchange for policy concessions—thereby violating far more than privacy laws—in order to win an election and harm U.S. citizens because of their participation in our political process.

Q. What if a journalist publishes information that she deems newsworthy, but a court disagrees? Would she then be liable?

A. Almost certainly not. Courts are appropriately reluctant to impose liability on journalists who are simply doing their job. That is why they are enormously deferential to the media’s judgment about what is newsworthy and what is not. This deference ensures that the media has “the breathing space needed . . . for the exercise of effective editorial judgment.” Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975). Here, all agree that the plaintiffs’ private information was of no relevance to the public and that the defendants made no effort to determine whether this information was newsworthy.

Q. Would a journalist be liable for publishing newsworthy information that she received from a political campaign in order to harm the campaign’s opponent? 

A. No. As long as the information is newsworthy, the First Amendment protects the right to publish it, regardless of the motives of the source—or even of the journalist. This is what the Supreme Court held in Bartnicki v. Vopper, 532 U.S. 514 (2001).

Q. What if the information was stolen by hackers?

A. Again, the First Amendment would protect the journalist as long as the information is newsworthy. Of course, if the journalist participated in the hacking or paid the hackers to obtain information the journalist knew had been stolen, she could be liable for participating in the hacking. As journalists know, the First Amendment is not a license to violate generally applicable laws. But as long as the journalist was not involved in the illegal conduct, she is protected by the First Amendment.

Q. The Campaign argues that the Supreme Court’s decision in Bartnicki supports their position here. Is that right?

A. To the contrary, Bartnicki makes clear why the First Amendment does not protect the Campaign. In Bartnicki, an anonymous individual illegally intercepted and recorded a phone call and provided the recording to a journalist, who played it on the air. The Supreme Court held that the First Amendment protected the journalist because he was not involved in the illegal conduct and the information was indisputably newsworthy. The Court emphasized that its holding was “narrow” and did not necessarily apply to “other information of purely private concern.”

The information at issue in this case, such as social security numbers, was indisputably private. Furthermore, the Campaign is nothing like the innocent journalist in Bartnicki. The Campaign was engaged in an illegal conspiracy to offer policy favors in exchange for the dissemination of its stolen private information and the intimidation of its political opponents.

“These plaintiffs allege direct harm caused by having their hacked private data published to the world. They make plausible allegations of conspiracy and are entitled to prove these claims. In my experience most conspiracy cases begin with circumstantial evidence just like this case. Investigation and discovery often proves it is true.”

John McKay, Former Bush-appointed U.S. Attorney, now Partner at Davis Wright Tremaine

”This powerful new lawsuit offers an excellent prospect of holding the Trump campaign accountable for the severe damage it did to many people’s lives by colluding with the Kremlin to invade and compromise their privacy. The complaints factual allegations are deeply researched and impressively current and the legal theories underlying it are ironclad.”

Laurence Tr​ibe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School

“A civil case only needs to present plausible allegations of harm and a violation of law. That entitles the plaintiffs to discovery to obtain the evidence to prove their claim. The Protect Democracy lawsuit clearly meets these requirements and indeed presents strong claims of wrongdoing.”

Erwin Chemerinsky, Dean of Berkeley Law

“[T]he case is clearly justiciable and is unlikely to be dismissed on standing grounds. Unlike plaintiffs in a number of other litigations facing Trump right now, there’s no serious standing issue here. The plaintiffs clearly allege that they had their personal information stolen and released and that they suffered real consequences as a result. There’s just no question that this complaint alleges injury in fact or that it seeks relief of a type courts normally grant. What’s more, the case does not present in any sense a political question or a matter that courts are likely to duck.”

Benjamin Wittes, editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution, the author of several books, and co-chair of the Hoover Institution’s Working Group on National Security, Technology, and Law

“Federal civil rights laws have played a key role in protecting Americans’ right to freely engage in our democracy for decades. This case is a perfect application of how they should also play a critical role as bulwarks against the kind of voter abuses we’re now facing in the 21st Century. Kudos to Protect Democracy for bringing this important case.”

Vanita Gupta, President and Chief Executive Officer of The Leadership Conference on Civil and Human Rights, former Acting Assistant Attorney General for Civil Rights

“This lawsuit might succeed where others haven’t yet in exposing the Trump campaign’s alleged involvement in disseminating the emails hacked from the servers of the Democratic National Committee… If the lawsuit survives the inevitable motions to dismiss – and it seems to have presented more than enough circumstantial evidence to do so – we may have a window into whether, and if so, exactly how, Trump’s campaign and advisers worked with the government of Russia to sabotage the Clinton campaign, support the Russian government’s agenda, and cause harm to these individual plaintiffs.

John Nockleby, Professor of Law & Director of the Civil Justice Program at Loyola Law School

“While there are many hurdles to be cleared, this litigation could eventually become a vehicle for discovery of documents and evidence in a judicial proceeding driven by private litigants. That means that a life-tenured federal judge will make determinations based on the Federal Rules of Civil Procedure and relevant substantive law without the potential political chokepoints presented by a partisan Congress and compromised Executive.”

 Andy Wright, Associate Professor at Savannah Law School

“[I]t’s a circumstantial case, but a compelling one, in light of (a) the numerous contacts between representatives of Russia and the Trump campaign; (b) the repeated falsehoods spread by the Trump campaign regarding those contacts; (c) the accounts (and now-public emails) describing offers of assistance by Russian actors to the Trump campaign; (d) the pro-Russia policy changes advocated by the Trump campaign; and (e) the established involvement by Russia in the hack itself. No plaintiff at the beginning of a lawsuit can point to a written document setting forth the conspirators’ agreement—but what plaintiffs have here is the next best thing.”

Jacob W. Buchdahl, Partner at Susman Godfrey L.L.P. and former federal prosecutor in the Southern District of New York’s public corruption unit

“In Cockrum et al. v. Donald Trump for President, the plaintiffs have solid standing and a firm foundation in a statutory claim: long-standing civil rights law protecting voting rights and privacy from intimidation and harm… Each plaintiff has a compelling story of harm, because the hacking conspiracy released deeply private information or sensitive financial and contact information. The complaint sets out step-by-step the facts suggesting the coordination between Russian hackers and the Trump campaign, and it is actually a riveting weaving of many strands and events over the past year.”

Jed Shugerman, Professor at Fordham University School of Law

“This important case seeks justice for ordinary people who were injured in concrete ways by the Russian attack on our democracy. I applaud the plaintiffs for stepping forward to litigate this matter, and their counsel for representing them. I believe the matter will easily survive a motion to dismiss and therefore allow discovery regarding these critically important matters, and I look forward to that.”

Norman Eisen, Chair and Co-Founder, Citizens for Responsibility and Ethics in Washington (CREW), former Ambassador the Czech Republic, and Special Counsel to President Obama for Ethics and Government Reform

Below is a sample of news coverage of the case:

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