Court Dismisses Democrats' Nutty Lawsuit Against Russia, Wikileaks And Trump Associates

A little over a year ago we wrote about a truly ridiculous lawsuit filed by the Democratic National Committee against the country of Russia, Wikileaks, the GRU, Julian Assange, the Donald Trump campaign, and a long list of Donald Trump associates, including Paul Manafort, Roger Stone, Jared Kushner, Donald Trump Jr. and more. As we discussed in great detail, this was a pro se-level lawsuit full of absolutely crazy legal theories that stood no chance in court, ostensibly over the hacking of the DNC's computers that occurred during the 2016 election. The complaint was mostly a conspiracy theory wrapped in a legal complaint, tossing in absolutely silly CFAA claims, SCA claims, DMCA claims and (because why not?) a RICO claim, despite the fact that it's never RICO.

We predicted that this lawsuit would go nowhere fast, and separately noted that many of the theories the DNC put into the lawsuit represented a very real threat to basic press freedoms. Thankfully, though not surprisingly, federal Judge John Koeltl, has dismissed the case. The order runs over 80 pages, but the judge does a nice job summarizing the many, many faults of the complaint upfront. Let's start with suing Russia. That's not how any of this works.

The primary wrongdoer in this alleged criminal enterpriseis undoubtably the Russian Federation, the first named defendantin the case and the entity that surreptitiously and illegallyhacked into the computers and thereafter disseminated theresults of its theft. But, as explained below, under theForeign Sovereign Immunities Act, 28 U.S.C. 1602 et seq. ("FISA"),the Russian Federation cannot be sued in the courts ofthe United States for governmental actions, subject to certainlimited exceptions not present in this case, just as the United States government generally cannot be sued in courts abroad forits actions. The remedies for hostile actions by foreigngovernments are state actions, including sanctions imposed bythe executive and legislative branches of government.

I mean, this seems like basic lawyering 101. You can't just randomly sue foreign governments in the US for state actions. How about all those other defendants? Well, they're not the ones who did anything. And the things they did -- publishing or sharing documents -- is so obviously protected under the First Amendment:

The DNC seeks to hold the second-level participants in thisalleged activity -- the Campaign, the Campaign defendants,WikiLeaks, Assange, the Agalarovs, Mifsud, and Stone -- liablefor dissemination of the stolen materials. But, as alsoexplained below, the First Amendment prevents such liability inthe same way it would preclude liability for press outlets thatpublish materials of public interest despite defects in the waythe materials were obtained so long as the disseminator did notparticipate in any wrongdoing in obtaining the materials in thefirst place. The plausible allegations against the remainingdefendants are insufficient to hold them liable for theillegality that occurred in obtaining the materials from theDNC. Therefore, for the reasons explained below, thedefendants' motion to dismiss the Second Amended Complaint isgranted.

The judge did reject a request by the Trump Campaign for Rule 11 sanctions against the DNC's lawyers, and even if this was obviously a frivolous lawsuit, courts are very, very reluctant to ever issue Rule 11 sanctions unless the activity is incredibly egregious. This dumb lawsuit was just everyday egregious.

The judge here clearly understood all of the myriad problems with the lawsuit, and the long ruling is a masterclass in pointing out how each of the DNC's theories is crazy. Let's start with the First Amendment/freedom of the press issues. It seems clear that the court understood how dangerous this kind of precedent would be. The judge cites the key cases on this issue which are pretty damn well established: the NYTimes v. the United States, which decided that it was protected by the 1st Amendment for the Times to publish the Pentagon Papers, and the more recent Bartnicki v. Vopper, which made it clear that even illegally obtained materials can be released by journalists, so long as the journalists did not participate in the illegal activities to obtain the materials. As the court notes:

As Bartnicki makes clear, there is a significant legaldistinction between stealing documents and disclosing documentsthat someone else had stolen previously.

The DNC tried to get around this by playing the "but RICO!" card, and arguing that there was a grand conspiracy at work, that magically meant that the Trump Campaign and all the associates did participate in the "stealing" of documents. The judge points out this is... not a sound legal theory.

However, the DNC has not alleged that any defendant otherthan the Russian Federation participated in the hack of thecomputers or theft of the DNC's documents. The DNC arguesthat the various meetings and conversations between thedefendants in this case and with persons connected to theRussian government during the time that Russian GRU agents werestealing the information show that the defendantsconspired with the Russian Federation to steal and disseminatethe materials.... That argument isentirely divorced from the facts actually alleged in the SecondAmended Complaint.

The judge further points out that just showing certain people met with one another or worked with one another doesn't automatically establish either a conspiracy or anything suggesting that they participated in the illegal obtaining of the DNC's content.

For example, the DNC argues in its opposition to thecurrent motions that the conspiracy between the RussianFederation and the other defendants to hack the computersand steal its electronic information began in March 2016.... However, the only events alleged to havetaken place in March 2016 are that Manafort was hired as theCampaign's convention manager, Papadopoulos was hired as aforeign policy advisor, and Papadopoulos met with Mifsud onMarch 14 and 24. The entirety of the allegationsregarding the March meetings between Mifsud and Papadopoulos arethat "[o]n March 14, 2016, Mifsud met with Papadopoulos inItaly," and "[o]n March 24, 2016, Mifsud met again withPapadopoulos, this time bringing along a Russian national whowas introduced as a relative of Putin." ...Papadoponlos reported back to the Campaign that "hisconversation was to arrange a meeting between us and the Russianleadership to discuss U.S.-Russia ties under President Trump."These vague references tomeetings between Papadopoulos, a foreign policy advisor to theCampaign, and Mifsud, a London-based academic not officiallyaffiliated with the Russian Federation, do not raise a plausibleinference that the defendants agreed to participate with theRussian Federation in hacking the computers and stealingits documents.... To the contrary, Mifsud is alleged to have told Papadapoulos about emails harmful to the Hillary Clintoncampaign only after the Russian Federation had hacked the DNCand had those emails in its possession.

The section on Wikileaks shows just how awful the DNC's case really was -- as their own complaint undermined their own argument.

The DNC also repeatedly argues in its brief that WikiLeaksparticipated in the theft of the DNC documents.... But in theSecond Amended Complaint the DNC alleges that WikiLeaks firstrequested stolen DNC materials from Guccifer 2.0 only after theRussian Federation had already stolen them and after Russianagents began disseminating them through Guccifer 2.0.... The Second Amended Complaint does not allege thatWikiLeaks agreed to participate in the theft or that it had anyadvance knowledge that the Russian Federation was planning tohack the DNC.

The court also points out that the infamous "meeting at Trump Tower" that has been subject to much speculation, happened after the DNC hacking had already occurred, meaning that it couldn't possibly have been held to establish a conspiracy to hack the DNC (and, of course, the DNC has no evidence to suggest, and thus, no allegations, to say that there was any discussion at that meeting of hacking the DNC). In other areas the judge points out that allegations "are even more threadbare." As we said, this is a conspiracy theory disguised as a legal complaint.

In short, the DNC raises a number of connections andcommunications between the defendants and with people looselyconnected to the Russian Federation, but at no point does theDNC allege any facts in the Second Amended Complaint to showthat any of the defendants other than the RussianFederation participated in the theft of the information. Nor does the DNC allege that the defendants everagreed to help the Russian Federation steal the documents.Indeed, the DNC does not raise a factual allegation thatsuggests that any of the defendants were even aware that theRussian Federation was planning to hack the DNC's computersuntil after it had already done so. At most, the DNC hasalleged that after the Russian Federation stole the documents, Mifsud and the Agalarovs told campaign members aboutthe stolen documents (although it is unclear whether thecommunications were about stolen DNC documents or generallyabout documents harmful to Hillary Clinton), WikiLeaks requestedthe stolen documents and published them, and some of the otherdefendants welcomed the publication of the documents at timeshelpful to the Campaign.

And thus, the actions of the others in passing around or publishing those documents later is quite clearly protected under the 1st Amendment.

The judge does separately deal with the issue of Wikileaks. This was the one that most concerned press freedom advocates, and the judge clearly understands the issues:

The argument for liability is strongest againstWikiLeaks because it is the only defendant other than theRussian Federation that is alleged to have published thestolen information. The DNC alleges that WikiLeaks solicitedstolen documents from the GRU and then coordinated with the GRUand the Campaign defendants to publish the stolen documents attimes helpful to the Trump Campaign. Like the defendant inBartnicki, WikiLeaks did not play any role in the theft of thedocuments and it is undisputed that the stolen materials involvematters of public concern. However, the DNC argues that thiscase is distinguishable from Bartnicki because WikiLeakssolicited the documents from the GRU knowing that they werestolen and coordinated with the GRU and the Campaign todisseminate the documents at times favorable to the TrumpCampaign. The DNC argues that WikiLeaks should be considered anafter-the-fact coconspirator for the theft based on itscoordination to obtain and distribute the stolen materials.

As an initial matter, it is constitutionally insignificantthat WikiLeaks knew the Russian Federation had stolen thedocuments when it published them. Indeed, in Bartnicki theSupreme Court noted that the radio host either did know, or atleast had reason to know, that the communication at issue wasunlawfully intercepted....

And, contrary to the argument, it is also irrelevantthat WikiLeaks solicited the stolen documents from Russianagents. A person is entitled publish stolen documents that thepublisher requested from a source so long as the publisher didnot participate in the theft.... Indeed, the DNC acknowledges that this is a commonjournalistic practice.

The argument that WikiLeaks can be held liable forthe theft as an after-the-fact coconspirator of the stolendocuments is also unpersuasive. That argument would eviscerateBartnicki; such a rule would render any journalist who publishesan article based on stolen information a coconspirator in thetheft....

WikiLeaks and its amici argue that holding WikiLeaks liablein this situation would also threaten freedom of the press. TheDNC responds that this case does not threaten freedom of thepress because WikiLeaks did not engage in normal journalisticpractices by, for example, "asking foreign intelligence servicesto steal 'new material' from American targets." ... The argument misconstrues itsown allegations in the Second Amended Complaint. In the SecondAmended Complaint, the DNC states that "WikiLeaks sent GRUoperatives using the screenname Guccifer 2.0 a private message,asking the operatives to "[s]end any new material [stolen fromthe DNC] here for us to review.'" ... This was not a solicitation to steal documentsbut a request for material that had been stolen. Journalistsare allowed to request documents that have been stolen and topublish those documents.... Therefore, the DNC cannot hold WikiLeaks or Assange liable forpublishing the information that Russian agents stole.

The court then rejects the DNC's argument that "trade secrets" (by which it meant donor lists) are somehow excluded from Bartnicki, and therefore publishing them is not protected by the 1st Amendment. As the court explains, this is a pretty blatant misreading of Bartnicki, which acknowledged that there could be a different calculus when it involved things like trade secrets -- whereas the DNC pretended that Barnicki outright excluded them. Either way, the court says that in this case, the publishing of donor lists is obviously protected by the 1st Amendment:

In this case it is plain that the conclusoryallegations that "donor lists" and "fundraising strategies" wereamong those documents published by WikiLeaks does not provide abasis to overcome the First Amendment. The interest inkeeping "donor lists" and "fundraising strategies" secret isdwarfed by the newsworthiness of the documents as whole....

If WikiLeaks could be held liable for publishing documentsconcerning the political financial and voter-engagementstrategies simply because the DNC labels them "secret" and tradesecrets, then so could any newspaper or other media outlet. Butthat would impermissibly elevate a purely private privacyinterest to override the First Amendment interest in thepublication of matters of the highest public concern. Thepublished internal communications allowed the Americanelectorate to look behind the curtain of one of the two majorpolitical parties in the United States during a presidentialelection. This type of information is plainly of the typeentitled to the strongest protection that the First Amendmentoffers....

And, as basically anyone with a passing familiarity with how RICO works expected, the court also explicitly rejects the whole RICO nonsense:

The allegationsprovide no basis to infer either that the alleged AIF membersformed an ongoing organization or that the defendants formed acoherent entity that was separate and apart from the predicateacts that allegedly comprise the alleged fraudulent scheme....

This is, in part, because the DNC alleges in conclusoryfashion that various individuals and entities have committedacts to further the scheme despite not having any apparentconnection to most of the other defendants. The DNC assertsonly that there were scattered contacts between the alleged AIFmembers and does not assert any facts suggesting hierarchy ororganization. For example, none of the asserted AIF members arealleged to have participated in the theft of the documentswith the Russian Federation or to have even been aware that theRussian Federation was planning such a theft. The RussianFederation published at least some of the documents via Guccifer2.0, and there is no allegation that any of the defendantsparticipated in that publication. WikiLeaks contacted the GRUto obtain the stolen documents, but there is no indication thatany of the other asserted AIF members were aware of thiscontact.

There's also this:

Moreover, the alleged common goal of the AIF enterprise to get Donald Trump elected is not an unlawful or fraudulentgoal.

The final claims in the complaint are dismissed pretty quickly as well. Wiretapping? Wha...? For it to be wiretapping, it has to involve recording something as it happens ("intercepted contemporaneously with transmission") and that did not happen:

There is no allegation that any of the documents providedto WikiLeaks contained communications that were interceptedcontemporaneously with transmission. The documents that theRussian Federation disclosed to WikiLeaks are described asreports and documents rather than items that would suggestelectronic communications that were recorded simultaneously withtheir transmission.... In any event, there is noallegation that WikiLeaks was aware that any documents itpublished were intercepted contemporaneously with transmission.

The Defend Trade Secrets Act claim flops as well. The earlier discussion about publishing trade secrets being protected by the 1st Amendment mostly covers that, but the claim makes even less sense for the other defendants:

The DNC does not allege that any defendant other than theRussian Federation and WikiLeaks possessed or published itsalleged trade secrets. However, the DNC argues that theremaining defendants are still liable under the DCUTSA becausethey "used" the documents after they had been published byWikiLeaks and the Russian Federation. This argument isuntenable -- a "trade secret that becomes public knowledge is nolonger a trade secret."... That thedefendants might have used documents that had already beenpublished by the Russian Federation and WikiLeaks is not anunlawful or improper use of the documents.

As for the computer hacking claims, again, only the Russians did that, and you can't bring them into a US court. The DNC tried to argue that there was "aiding and abetting" by the others, but (1) they then "failed to allege facts showing any defendant aided or abetted the hack into the DNC computer systems," and (2) it doesn't appear that the Virginia Computer Crimes Act (the local state version of the CFAA) even includes liability for aiding and abetting. But, hey, why would that stop the DNC?

The court doesn't even seem to bother with the rather insane copyright claim, which was based on DMCA 1201 -- the anti-circumvention part of the DMCA, in which the DNC argued that the DMCA 1201 acted as a sort of mini-CFAA, because any activity to get around "technical protection measures" is automatically infringing under 1201. But, that theory is so nuts it looks like the court just skipped right over it.

Again, none of this is surprising, but it's nice to see a clear and decisive ruling on this -- and one hopes the DNC and its lawyers just let this one go rather than trying to appeal (a wish that seems unlikely to be fulfilled). It's possible this case is more about politics than any legal theory (because there is no reasonable legal theory here), but if so that's even more abusive of the federal judicial system.