On Wednesday, three victims of the Democratic National Committee (DNC) cybertheft and subsequent document release by WikiLeaks filed a federal lawsuit against Donald J. Trump for President, Inc. and Roger Stone. 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. The complaint in Cockrum et al. v. Trump for President & Stone can be read here.
The plaintiffs are represented by United to Protect Democracy, a public interest law firm committed “to hold the President and the Executive Branch accountable to the laws and longstanding practices that have protected our democracy through both Democratic and Republican Administrations.” Nancy Gertner of Fick & Marx law firm and University of Michigan Law Professor Richard Primus are also counsel of record. I have occasionally advised Protect Democracy on matters related to congressional oversight and executive privilege, although I just learned about this lawsuit today.
Two of the plaintiffs are DNC donors whose Social Security numbers and confidential financial information was disclosed by WikiLeaks. The complaint alleges they suffered harassment and financial fraud attacks subsequent to the WikiLeaks disclosures. The third plaintiff was a DNC employee whose work email was hacked and leaked. Per the complaint, his leaked emails contained confidential personal information about his health and sexual orientation. The complaint alleges he suffered bigoted attacks and significant family estrangement, and work marginalization due to the publication of his communications.
The majority of the 46-page complaint alleges facts seeking to establish a conspiracy between the Trump campaign, Russian agents, and WikiLeaks. In that sense, this pleading is a handy repository of the firehose of revelations about the Russia investigation over these past months.
Count I of the complaint alleges the tort of public disclosure of private facts under the laws of the District of Columbia. The elements of this tort are: “(1) publication, (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 of ordinary sensibilities.” Wolf v. Regardie, 553 A.2d, 1213, 1220 (D.C. 1989). The First Amendment concerns are largely resolved through the legitimate public concern prong. Here, the plaintiffs specifically allege that the facts were private and none were newsworthy. Count II alleges the tort of intentional infliction of emotional distress under D.C. law, labeling the same alleged conduct “extreme, outrageous, and beyond the bounds of decency.”
Count III of the complaint alleges a conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985(3). Specifically, the plaintiffs allege the conspiracy constituted an effort “to intimidate lawful voters from giving support or advocacy to electors for President.” This Reconstruction Era statute was written as a federal effort to countermand the rise of the Ku Klux Klan in the post-Civil War South. It provides a federal cause of action to redress injury where “two or more persons…conspire…for the purposes of depriving, either directly or indirectly, any person…of equal privileges or immunities under the law.” The judiciary has a tortured history of interpretation of the civil rights statutes of the era, and Section 1985 is no different. Ken Gormley’s 1985 article provides a sketch of that troubled history. Gormley cautions that the statute not be read to be “so broad and all-encompassing that it becomes a federal tort law.” There is precedent for this kind of claim: the DNC asserted a Section 1985 claim in its Watergate civil case, which the Committee to Re-elect the President settled for $850,000 after President Richard Nixon resigned.
Still, I suspect the scope of Section 1985(3) will become a significant line of legal tension for these litigants during the dispositive motions stage. In addition, the case will provoke legal disputes over First Amendment application to the invasion of privacy claim.
The chief challenge in this case, however, will be evidentiary. There are ample emerging reports that Russia sought to meddle in U.S. elections. Based on news reports, we now know that Donald Trump, Jr., Jared Kushner, and Paul Manafort were ready, willing, and able to accept Russian assistance in derailing Hillary Clinton’s campaign. And, there is evidence that Trump confidante Roger Stone was consulting with WikiLeaks and Guccifer 2.0, both with alleged links to Russia’s operation. The challenge will be connecting the dots between Russian intelligence operations, Trump campaign actors’ appetite for collusion, and injuries flowing from WikiLeaks document dumps. That issue will likely get tested early as a matter of pleading sufficiency. In addition, there will be challenges as to translating news stories into admissible evidence given that much of the reporting is anonymously sourced. Along the way, there will also be other evidentiary hurdles, including sensitive government intelligence information, extraterritorial actors, and recalcitrant parties.
But this is an extraordinary case in which discovery orders on the path to that proof could be as important to the public discourse as the outcome of the case itself.