On July 30, Judge John G. Koeltl declared that the materials WikiLeaks published from the Democratic National Committee during the 2016 election cycle were “a matter of public concern,” even “highest public concern.” He wrote that the DNC’s published internal communications allowed the American electorate to look behind the curtain of one of the two U.S. major political parties during a presidential election: “This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers.”
Remember that, approximately a year ago, the Democratic National Committee filed a lawsuit in New York, New York, alleging that Donald Trump and a bunch of other people engaged in a conspiracy with the Russian Federation to hack and disseminate emails stolen from the DNC’s server. The lawsuit, much like the special counsel report and the mainstream media coverage of the Russiagate hoax, relied upon innuendo and guilt by association.
The clear-thinking judge drilled into DNC’s allegations and concluded, “The DNC does not allege that any of the non-Russian Federation defendants actually participated in any of the hacks on the DNC’s computer system.” Although Trump might have rejoiced in the exposure of truthful but embarrassing information about the DNC, he is not legally culpable, the judge ruled, so long as he did not help steal the information.
For nearly a year and a half, I and others have cataloged an almost unbroken string of perversion of the law in the Get Trump era (here, here, and here, to name a few examples). The mob seemed to just trample over bedrock principles like attorney-client privilege, the presumption of innocence, and freedom of speech. The Get Trump forces seemed unstoppable, terrifying, and vindictive. Then, on July 30, 2019, a brave, Clinton-appointed judge presiding in the liberal stronghold of New York in the “sovereign” district of New York applied the law as written.
Has the fever broken? Has sanity begun to reassert itself? There’s reason for hope. Koeltl dismissed a case that, at its core, was a private effort to punish and deter free speech because it embarrassed the left. In another sign that the Get Trump fever might have broken, the American Civil Liberties Union filed an amicus brief opposing the DNC’s effort to criminalize speech.
Importantly, the judge noted that the DNC did “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…publication of documents that they did not help steal.”
For some time, true civil libertarians have questioned the efforts to criminalize the publication of the DNC emails by pointing to the precedent of New York Times co. v. United States (a.k.a. the “Pentagon Papers” case) in which the U.S. government attempted to stop the publication of accurate but illegally obtained information. Judge Koeltl further cited that case and the Bartnicki v. Vopper case, in which a radio host played an illegally intercepted audiotape of a union negotiator contemplating violence to achieve goals that mere negotiation could not.
In Bartnicki, the Supreme Court held that “the defendant could not be held liable for disseminating the recorded information because the publication was protected by the First Amendment.” Further, Judge Koeltl approvingly cited the Supreme Court’s pronouncement that, “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Even if a party knows or has reason to know that the information was illegally obtained, the publisher is protected so long as he did not help steal the information.
Journalists, Judge Koeltl held, “are allowed to request documents that have been stolen and to publish those documents.” Recall why the WikiLeaks publications embarrassed both the media and the DNC. As I wrote last year,
Often forgotten is that the documents the Russians allegedly gave WikiLeaks revealed embarrassing evidence of journalistic coordination with the Democratic National Committee and Hillary Clinton.
For example, CNN allowed the DNC to help draft questions for Trump. CNBC’s John Harwood asked the Clinton campaign manager what questions he should ask candidate Jeb Bush in an interview in 2015. Washington Post columnist Dana Milbank used the DNC as a source for an anti-Trump article.
DNC interim chair Donna Brazile, whom CNN employed as a contributor, fed the Clinton campaign questions Hillary Clinton would receive in a debate with Bernie Sanders. Politico’s Kenneth Vogel sent a copy of a story to the DNC before he sent it to his editors. The DNC leaked negative information to the Wall Street Journal to help Clinton win the primary. CNN contributor Maria Cardona had the DNC screen an op-ed she wrote blasting Sanders fans. The Russia hoax is, in part, the media’s revenge for this embarrassment.
The opinion also held that Russia cannot be sued under the circumstances alleged by the DNC. While this is frustrating for the DNC, international law has frowned upon using domestic courts to resolve differences between countries.
The judge also rejected a separate claim alleging a criminal racketeering (RICO Act) violation. The DNC’s allegations of contacts between the Trump campaign and Russians were just guilt by association and did not demonstrate any conspiracy or illegal agreement.
It’s worth revisiting the talking point now circulated: That if a campaign is approached by a foreign government with information damaging to their opponent, the campaign should immediately contact the FBI. But what if former FBI agent Peter Strzok or somebody just like him takes the case?
We don’t have to guess what would happen. When Christopher Steele began feeding Clinton anti-Trump dirt supposedly originating from Russia, the FBI chipped in and helped pay for his work. As I’ve written before, the Department of Justice and FBI should not be in charge of filtering what information makes it to American eyes and ears. History has shown that they play favorites.
A court striking down the left’s effort to punish a WikiLeaks for publishing truthful information? It’s a sign that the rule of law might yet triumph over the lawless Get Trump movement that has corrupted our legal system since 2016. One can only hope.