The motion’s language seems to further an argument made by Trump and his allies as they await the findings of Special Counsel Robert Mueller’s investigation into a potential conspiracy between the campaign and Russia in 2016: namely, that collusion, even if it involved the coordinated release and exploitation of a candidate’s emails during the presidential election, is not a crime.
In that sense, the campaign’s legal team is taking advantage of the fact that the so-called Cockrum lawsuit—filed by the two DNC donors, Roy Cockrum and Eric Schoenberg, and the former DNC employee, Scott Comer—doesn’t accuse the campaign of actually helping the Russians hack the Democratic National Committee, which would be a crime. Rather, the plaintiffs put forth their privacy argument based on the alleged coordination among the campaign, Stone, Russia, and WikiLeaks. (The same three plaintiffs previously filed a similar lawsuit in D.C. federal court in July 2017, naming both the Trump Campaign and Stone as defendants, that was dismissed for lack of personal jurisdiction in July 2018. By filing the new suit in Virginia, where the Trump Campaign was incorporated, the Plaintiffs avoided a similar jurisdictional challenge.)
But the right to free speech, the campaign’s lawyers argued, supersedes the right to privacy. “At a minimum, privacy cannot justify suppressing true speech during a political campaign,” they wrote. Quoting from the Citizens United case, they added that the First Amendment leaves parties “‘free to obtain information from diverse sources in order to determine how to cast their votes.’ It would eviscerate that guarantee to punish true disclosures made in a political campaign.”
Ian Bassin, the executive director of Protect Democracy, which represents the plaintiffs in the lawsuit, told me that the brief “seems like the technical legal version of the more political argument the Trump team has been floating, and will make in earnest, should Robert Mueller eventually find that the campaign engaged in a conspiracy like the one we allege, which seems very possible given how the indictments he’s already brought line up with the complaint in this case. We of course intend to rebut that argument in the litigation, as it’s wrong.”
While there is no evidence yet that the Trump campaign knew about or aided in the hacking itself, campaign-finance laws prohibit candidates from accepting “anything of value” from a foreign national. The Trump campaign could face legal exposure, then, if a prosecutor could prove that Trump or his campaign associates made an agreement with Russia to publish the stolen emails—which were clearly valuable to the campaign, given how often Trump quoted from them during rallies—via a third party such as WikiLeaks, as Bob Bauer, a former White House counsel to President Barack Obama, has written.