Oral Argument Summary: Cockrum v. Trump

On Thursday, lawyers for Roger Stone, the Trump campaign, and a handful of plaintiffs affiliated with the Democratic National Committee met in a federal courtroom to battle out the same question that everyone in American politics has been arguing over for the past year and a half: was there collusion between Donald Trump’s presidential campaign and the Russian government?

The occasion was a hearing on a motion to dismiss in Cockrum v. Trump, a civil suit filed by the group Protect Democracy on behalf of a DNC employee and two Democratic donors whose emails were disclosed by Wikileaks as part of the DNC hack. (Full disclosure: Protect Democracy is also representing Lawfare staff members Benjamin Wittes, Susan Hennessey, and Scott Anderson in several matters, including matters under the Freedom of Information Act, the Foreign Intelligence Surveillance Act, and the Data Quality Act.)

The plaintiffs bring three claims: first, a D.C. tort claim for public disclosure of private facts; second, a D.C. tort claim for intentional infliction of emotional distress; and third, a claim under 42 U.S.C. 1985(3), a Reconstruction-era civil rights law known sometimes as the Ku Klux Klan Act, for intimidation of voters from engaging in political advocacy during an election. The legal theory of the case rests on the claim that the Trump campaign “entered into an agreement with other parties, including agents of Russia and WikiLeaks, to have information stolen from the DNC publicly disseminated in a strategic way that would benefit the campaign to elect Mr. Trump as President." As such, Stone and the campaign are liable as parties to the conspiracy, even though they didn’t hack or release plaintiffs’ emails themselves.

When the lawsuit was first filed in July 2017, Wittes argued that the case could “become a gold mine for journalists and investigators” looking into L’Affaire Russe—if the plaintiffs survived the inevitable motion to dismiss and made it to the discovery phase. At issue in Thursday’s hearing was whether the case could make it over that hurdle. And it seems like it might, though perhaps not in D.C.

Judge Ellen Huvelle of the U.S. District Court for the District of Columbia pushed plaintiffs hardest on the question of jurisdiction. For the plaintiffs, Ben Berwick of Protect Democracy made the case for the court’s jurisdiction under several different theories but focused on the District of Columbia’s “long-arm” statute, which holds that D.C. courts may exercise personal jurisdiction over a defendant if a claim is brought regarding the defendant’s “transacting any business in the District of Columbia.” Berwick argued that the Trump campaign had conducted business in Washington, D.C. that was relevant to the conspiracy, pointing to campaign meetings: first, the March 31, 2016 meeting in which George Papadopoulos offered to arrange a meeting between Trump and Russian President Vladimir Putin; and second, then-Sen. Jeff Sessions’ April 2016 conversation with Russian Ambassador Sergey Kislyak at the Mayflower Hotel. These meetings constituted overt acts in furtherance of the Trump campaign’s conspiracy with the Russian government, Berwick argued.

Huvelle suggested that while she might not have jurisdiction over the case, courts located in New York likely would: several senior campaign officials, along with Stone, resided in New York City during the period of the alleged conspiracy, and at least one high-profile meeting alleged by the plaintiffs as an overt act—the Trump Tower meeting with Natalia Veselnitskaya—took place in the city as well. Michael Carvin, representing the Trump campaign, agreed as to venue: “I can’t see any reason why [the case] shouldn’t be in New York,” he said.

Huvelle also pushed the plaintiffs on the question of just how far the conspiracy they alleged extended. At several points she noted that the plaintiffs’ claims focus on the conspiracy to disseminate the hacked emails, rather than to obtain those emails in the first place, and suggested that the plaintiffs were trying to string together two discrete conspiracies (one to hack, the other to leak). Berwick framed the legal theory differently: the alleged conspiracy extended over a long period of time and encompassed both the hacking and leaking, he said. And while the plaintiffs don’t have a firm start or end date in mind, that information would come during discovery; to survive a motion to dismiss, he argued, the plaintiffs have only to show that the conspiracy is “plausible.”

Berwick went on to argue that it was appropriate to incorporate into the conspiracy actions that took place well after the plaintiffs were injured by the dissemination of the emails. Conduct by the Trump campaign and incoming administration that seemed to benefit Russia—even months after the emails were leaked—is the equivalent of paying someone belatedly for committing a crime months before, he said.

Carvin—unsurprisingly—took a different approach, reading the conspiracy sketched out by the plaintiffs as narrowly focused on the dissemination of their emails. For the purposes of jurisdiction, he said, it’s true that the campaign did business in D.C. under the district’s long-arm statute—but the plaintiff’s allegations contain nothing suggesting that any of the campaign’s D.C. meetings had anything to do with specifically releasing the emails. And there’s little in the initial complaint to draw a link between whatever Russia was trying to do and the release of plaintiffs’ emails, he argued. As far as the plaintiffs allege, Russia’s goal was to assist the Trump campaign, not dump the social security numbers and emails of DNC employees and donors.

Huvelle quizzed Berwick on the nature of the injury alleged by one of the plaintiffs, DNC employee Scott Comer, who argues that the publication of his emails outed him as gay and caused him sufficient embarrassment to force him to resign from his job. Huvelle, seemingly irritated, said that the plaintiffs had provided an insufficient amount of Comer’s emails for her to understand what led to his injury, and she demanded that counsel provide her with the missing documents by the next day. “I’ve got to see the emails,” the judge said. “I don’t want them all dumped on me, either. I’m not Wikileaks.”

Stone’s attorney Robert Buschel was silent for for much of the hearing, repeatedly declining the judge’s invitation to weigh in. He argued only briefly in the hearing’s first hour that Stone had no involvement in the conspiracy when it was taking place and that the court had no jurisdiction over him as a resident of New York who never traveled to D.C. during the timeframe of the complaint. For the three remaining hours of the hearing, he sat quietly, watching Carvin tangle with Richard Primus—arguing for the plaintiffs—on the merits of the Section 1985(3) claim.

It was jarring to hear the story of L’Affaire Russe presented before a judge as evidence of a conspiracy to tip the election in favor of Donald Trump. The key factual allegations in this saga—the Trump campaign’s series of meetings with Kislyak, the Russian government’s outreach to the campaign through George Papadopoulos and Veselnitskaya, Paul Manafort’s offer to brief Russian oligarch Oleg Deripaska—are so familiar that they’ve become almost anodyne. Yet these are the facts that Huvelle has to assume true for purposes of the current motion to dismiss.

In weighing whether or not they could make out a plausible case for a conspiracy, Huvelle was standing in for everyone who has looked at the Russia investigation over the last year and a half and wondered if there’s really any there there. At one point, she turned to Manafort’s email offering to brief Deripaska and questioned whether it constituted an overt act in furtherance of a conspiracy or simply an unrelated effort at self-enrichment. This is what we’ve all been asking ourselves all along—whether these events hold any significance or whether they’re just noise.

For this reason, Carvin’s presence in the courtroom was all the more striking. He came out swinging, declaring bluntly that any arrangement the campaign might have had to coordinate the release of hacked emails with Wikileaks or the Russian government would have been entirely legal—normal politicking protected by the First Amendment. He pointed to the timing of the emails’ release—right before the Democratic National Convention—as an example of a typical attempt to influence voters’ views. The material released was all newsworthy, he argued—to which the plaintiffs countered that social security numbers have been found by numerous courts to be confidential information. At one point Carvin compared the alleged agreement between the Trump campaign and Wikileaks to a hypothetical plan by the Clinton campaign to provide opposition research against Trump to the New York Times.

In arguing a motion to dismiss, Carvin can’t dispute the facts alleged by the plaintiffs, but it was notable that he didn’t even bother to use phrases like “even assuming arguendo the facts alleged to be true.” Maybe the Trump team has concluded that there’s little political benefit to be gained from that caveat and little political risk to not bothering with it. Essentially, Carvin seemed to be making the courtroom version of the same argument Rudy Giuliani has put forward repeatedly on national television. Even if we did conspire with the Russians, so what?

Perhaps the strangest moment of the hearing came when Carvin attacked the plausibility of the alleged conspiracy under the Section 1985(3) claim, arguing that distributing emails would be an inefficient way to dissuade voters from participating in political advocacy. “If this had been our scheme,” he said, the campaign would have instead sought to scare off potential donors to the DNC by threatening to release their social security numbers if they contributed.

“If you’re defense counsel and you argue, ‘If we were going to do this crime we would have done it better,’” Huvelle responded, “I’m not sure that’s going to carry the day.”