Yesterday, the U.S. District Court for the Southern District of New York (per Koetltl, J.) dismissed an action brought by the Democratic National Committee against the (i) Russian Federation (the “GRU”), (ii) WikiLeaks and Julian Assange, and (iii) the Donald J. Trump for President campaign and various official and semi-official operatives of that campaign-Donald J. Trump, Jr., Paul J. Manafort, Jr.; Jared C. Kushner, George Papadopoulos, Richard W. Gates, III, and Roger J. Stone, Jr. (I refer to “semi-official operatives” since Stone, at least, was not a formal member of the Trump Campaign, but sort of an ex officio member.) At least three shadowy go-betweens, Aras Iskenerovich Agalarov, Emin Araz Agalarov, and Joseph Mifsud, were also named as defendants.
The facts alleged in the DNC’s complaint were assumed to be true for the purposes of ruling on the motions to dismiss filed by the various defendants. Those facts are well-known to those who have followed the investigation into Russian interference in the 2016 election. Specifically, Russia hacked into computers and servers of the DNC, “stealing thousands of documents . . . including documents containing donor information, financial and economic information, proprietary opposition research compiled from multiple sources, information regarding planned political
activities, and emails. ” None of the defendants other than the GRU were alleged to have actually participated in the hacking. Rather, the DNC’s claims against the non-GRU defendants rest on the proposition that they:
[C]onspired with the [GRU] to steal the DNC’s emails, trade secrets, and other documents from the DNC’s computer system and disseminate those materials to the public. The DNC does not claim that the stolen materials are false or defamatory. Rather, the DNC seeks to hold the defendants liable for the theft and disclosure of the stolen materials.
The claim against the GRU was dismissed because, due to the provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., the GRU cannot be sued in the courts of the United States for sovereign actions.
The non-GRU defendants argued that “the DNC’s claims against them are barred by the First Amendment because the DNC seeks to hold them liable for publication of documents that they did not help to steal.” The District Court’s decision with respect to the non-GRU defendants rests on two propositions.
The first, derived from the opinion in New York Times Co. v. U.S., 403 U.S. 713 (1971) (the “Pentagon Papers Case”) and its progeny, is that there is a right to publish information of public concern obtained from documents stolen by a third party. The District Court cited Bartnicki v. Vopper, 532 U.S. 514, 517-18 (2001) for the proposition that:
[T]here [is] no liability for disclosing stolen information where (1) the disclosing party “did not participate” in the theft, even though that party knows or has reason to know of the theft, and (2) the disclosure “concern[s] public issues.”
See generally, slip op. at 31-34.
Second, the District Court found that the DNC had failed to plead factual allegations that would show that the non-GRU defendants had conspired with the GRU in committing the thefts. The District Court stated that:
The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the DNC’s information show that the defendants conspired with the Russian Federation to steal and disseminate the DNC’s materials. That argument is entirely divorced from the facts actually alleged in the Second Amended Complaint.
Slip op. at 35. Internal record reference omitted.
Stated simply, the District Court did not find that the defendants were blameless. After all, it is clear that they knowingly trafficked in material that the Russians stole from the DNC. Rather, the District Court found that the DNC had failed to state a legally cognizable claim for relief because it could not make any factual allegations that the defendants conspired with the Russians to commit the thefts.
While I’ve been away from civil litigation in federal court for some years now, it seems to me that the District Court misapplies the “plausibility” standard for weighing the sufficiency of allegations in a complaint. (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), cited by the District Court at slip op. 4.) For instance, take this passage from the District Court’s opinion:
The DNC does not allege what specifically was discussed at the [June 9, 2016] Trump Tower meeting but reiterates that the Russians had offered “damaging information about the Democratic presidential nominee” to the Campaign. The day after the Trump Tower meeting, on June 10, 2016, GRU agents unsuccessfully attempted to hack the DNC’s backup server, Raider. On June 12, 2016, Julian Assange — the founder and publisher of WikiLeaks — appeared on a British television show and stated that WikiLeaks had obtained “leak materials concerning the Democratic presidential candidate” and would be releasing them soon.
Slip op. at 13. Internal record citations omitted.
I would humbly suggest that only one who is practiced in believing as many as six impossible things before breakfast could conclude that there was no plausible evidence of a conspiracy between the Trump officials at that meeting and the GRU.
But to focus on the mere technical aspects of legal pleadings certainly misses the point. It is this: The Trump election effort willingly trafficked in material that they knew had been stolen by a foreign enemy of the United States. By so doing, they cooperated with a foreign power to influence a presidential election and, in addition, put themselves in a position to be blackmailed and extorted by the foreign power. The facts set forth in the DNC’s complaint may not be sufficient to set forth a claim for relief, but they clearly disqualify any of the defendants and anyone else who knew of or participated in their actions from ever holding public office.
