Why the First Amendment Does Not Protect Trump Campaign Collusion with Wikileaks and Russia

Despite the president’s signature hostility toward the press, the Trump campaign is strenuously trying to wrap itself and Wikileaks in the protective garb of the First Amendment in defending against a lawsuit involving the hacking and dissemination of Democratic National Committee emails in 2016.

The case involves a civil suit brought by a DNC employee and two Democratic donors whose private financial and personal information was disclosed by Wikileaks as part of the DNC hack. The legal maneuvers in this case are being closely watched for what they suggest about how the Trump lawyers may approach any allegations of collusion with the Kremlin and Wikileaks that come directly out of the Mueller investigation.

The campaign’s lawyers told a judge that even if the president and his lieutenants worked with Russians and Wikileaks to disseminate emails to influence the outcome of the presidential election, only the act of stealing those emails would be prohibited. The campaign and Wikileaks, on this view, acted like the news media in simply passing on the stolen information.

This line of argument is a striking distortion of the core principles of freedom of the press.  It also relies on a demonstrable falsehood—that the Trump campaign had no involvement in the Kremlin and Wikileaks’ conspiracy to violate U.S. election law in acquiring and distributing the emails.

The very Supreme Court case that the campaign cites in its defense—Bartnicki v. Vopper—offers a clear roadmap for showing why its position is wrong. In that 2001 opinion, the Court upheld First Amendment protections for a radio host who had received from an unknown source, and later aired, the contents of an illegally intercepted cell phone conversation between two union officials discussing the use of violent tactics in a labor-management dispute. The Trump campaign asserts that it is no different from the broadcaster: its hands are legally clean, and it was just exercising its free speech rights.

That assertion of blamelessness is the critical flaw in the Trump campaign’s case, because the Bartnicki court was careful to note that the radio host had not solicited the illegal recording or been otherwise involved in the original plan for illegal interception and distribution.

The court stressed the significance of these facts: It was not laying down the ironclad protection that Trump campaign is claiming. It noted in particular its repeated refusal to answer categorically whether truthful publication may ever be punished consistent with the First Amendment.” Rather,

“[O]ur cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily. . . . We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Florida Star, 491 U. S., at 532–533.

It is on fundamental factual distinctions between Bartnicki and the Trump case that the campaign’s First Amendment theory founders.  Unlike Bartnicki’s radio host, the campaign is not free of involvement in illegal activity. It did not merely comment on what the Russians and WikiLeaks conspired to make public. It willfully engaged with both the Russians and WikiLeaks in both the pursuit and the publication of the stolen emails—actions that bump up against clear prohibitions in federal campaign finance law. Foreign nationals may not contribute or spend funds to influence an American election, and, crucially, a U.S. political campaign cannot assist or act in coordination with foreign electoral intervention.

We know that the Russians were peddling assistance to a receptive campaign, that the campaign learned as early as April 2016 that Russians possessed stolen emails, that the campaign via the president’s son Donald Jr. advised the Russians on when to release derogatory information (“later in the summer”), that the Russian hacking operation continued long after the Russians first made contact with and were greeted receptively by the campaign, that the president himself publicly encouraged the Russian government to locate the so-called “missing“ Clinton emails, and that Russian spies quickly followed by trying to hack Clinton’s personal email. There are also reports that the Russians may have previewed the plan to disseminate the emails before ever doing so.  For the purposes of the ongoing civil suit, those allegations alone rob the campaign of its current defense.

Still more about this coordinated activity may come to light as the special counsel reportedly investigates early contacts between WikiLeaks and Trump associate and campaign surrogate Roger Stone. Only this week, the New York Times disclosed emails between Stone and senior Trump campaign aide that show a campaign alerted in advance to the WikiLeaks’ possession of the stolen emails and pressing for their public release.

The Bartnicki court stressed that that the radio host was a passive recipient of the cell phone recording who did not even know who had made it. In contrast, the Trump campaign was in no way passive, and it knew exactly who had done the hacking and who was providing the platform for publication.

These are not the only differences that work against the Trump campaign’s propositions. The Court in Bartnicki singled out the public significance of the conversation captured in the illegal recording. The labor dispute was protracted and bitter, very much a matter of public debate before the cell phone conversation was exposed. It was on the basis of that context that the court found that the material issue had distinctive public importance that carried great weight in the constitutional analysis.

The Trump campaign’s pursuit of the stolen emails was not focused on any such particular issue of public significance. It was the Russians’ and WikiLeaks’ goal, shared by the campaign, to steal and release private material that would be simply embarrassing and disruptive to the Democrats. And, indeed, that turned out to include such things as internal personal squabbles, donors’ private information, credit card and social security numbers.

The campaign lawyers endeavor to put the best possible face on this campaign dirty trick. They argue that the material uncovered by the hacking exposed important facts about the DNC’s tilt toward Hillary Clinton over Bernie Sanders and conduct toward donors and the press.  But whatever the “public significance” of these matters, the campaign did not have any advance reason to believe that exposure of the emails would uncover them. Its aim, the Russians’ and WikiLeaks’ were the same: exploit the illegal hacking to whatever electoral advantage could be gained.

There is misplaced concern that a defeat for this First Amendment defense puts media protections at risk. Federal campaign finance regulation supplies useful guidance here: It exempts standard journalistic activity, but denies those protections to conduct outside the “legitimate press function.” It is clear from disclosures by an internal WikiLeaks critic and other materials that Julian Assange targeted Hillary Clinton and sought to work with the Trump campaign and the Russians to secure her defeat. This is not a “legitimate press function.” And the conflation of Wikileaks’ plan of campaign attack with standard journalistic activity undermines important distinctions critical to the protection of the free press.

The danger presented by a Trump campaign victory on this First Amendment issue is that, if successful, it will rely on this case to assert a broader constitutional defense of the alliance it struck with Russia in the 2016 election. This is a direct threat to special counsel Robert Mueller investigation’s efforts to achieve accountability under the law for foreign interference in the 2016 election.

In effect, the Trump campaign’s lawyers are preparing to pivot from the claim that there was “no collusion” to the claim that collusion is constitutionally protected. The ongoing litigation is a testing ground for this novel constitutional theory, and it should be the place where that theory quickly dies.

 

[Editor’s note: Readers may also be interested in Floyd Abrams, What Facts Would Deny the Trump Campaign First Amendment Protections in Colluding with Russia; Andy Wright, The DNC Lawsuit and First Amendment Sensitivities; Elizabeth Goitein, The Constitutional Rubicon of an Assange Prosecution; Ryan Goodman and Steve Vladeck, Q&A: Why an Assange Prosecution Could Pose Such a Threat to the Press]

Photo credit: Carl Court/Getty Images

  

About the Author(s)

Bob Bauer

Former White House Counsel to President Obama (2010-2011). Professor of Practice and Distinguished Scholar in Residence at New York University School of Law.

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.