COCKRUM et al v. DONALD J. TRUMP FOR PRESIDENT, INC. et al

Filing 33

MOTION for Leave to File Brief of Amicus Curiae by MARK SALTER, BEN LABOLT,HOWARD OPINKSKY, MINDY FINN,HARI SEVUGAN (Attachments: # 1 Exhibit Exhibit A: Brief of Amici Curiae)(Atkinson, Katherine) Modified on 12/11/2017 to correct filer(s)(jf).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROY COCKRUM, et al.,
Plaintiffs,

Case No. 1:17-cv-1370-ESH

v.
DONALD J. TRUMP FOR PRESIDENT, INC.,
& ROGER J. STONE,
Defendants.

MEMORANDUM OF AMICI CURIAE
BIPARTISAN CAMPAIGN OFFICIALS
IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

M. Patrick Moore Jr.
Massachusetts BBO No. 670323
HEMENWAY & BARNES LLP
75 State Street, 16th Floor
Boston, MA 02109
617-227-7940
[e-mail]
Counsel for Amici Curiae

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TABLE OF CONTENTS
Page
SUMMARY OF ARGUMENT ........................................................................ 1
ARGUMENT.................................................................................................. 2
A.

Advocacy on Behalf of a Political Party or a Candidate
is an Essential Part of Democracy. ............................................... 3

B.

The Theft and Publication of Communications of
Party and Campaign Staff Will Chill Participation in
Electoral Politics. .......................................................................... 4

C.

Campaigning Does Not Require Relinquishment of a
Private Life. ................................................................................... 6

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TABLE OF AUTHORITIES
Page(s)
Cases
Abrams v. United States, 250 U.S. 616 (1919) ............................................. 3
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,
564 U.S. 721 (2011)............................................................................. 3
Bartnicki v. Vopper, 532 U.S. 514 (2001)................................................. 4, 6
Buckley v. Valeo, 424 U.S. 1 (1976) .............................................................. 3
Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937 (7th Cir. 2015) ........... 5
Federal Election Comm’n v. Nat’l Conservative Political Action
Committee, 470 U.S. 480 (1985) ....................................................... 3
Florida Star v. B.J.F., 491 U.S. 524 (1989) .................................................. 4
Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974) ...................................... 6, 7
Int’l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87 (3d
Cir. 1988) ............................................................................................ 7
Jankovic v. Int’l Crisis Grp., 822 F.3d 576 (D.C. Cir. 2016) ........................ 6
McCutcheon v. Federal Election Comm’n, 572 U.S. –, 134 S. Ct.
1434 (2014)......................................................................................... 3
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)........................... 3
United States Dep’t of Justice v. Reporters Committee for
Freedom of Press, 489 U.S. 749 (1989) ............................................. 5
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C.
Cir. 1980) ............................................................................................ 7
Statutes
5 U.S.C. § 552(b)(6) ....................................................................................... 7
42 U.S.C. § 1983(3) ....................................................................................... 3

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Other Authorities
Megan McDonough, “Finding Hope, and Later Love, on the
Presidential Campaign Trail,” Washington Post (Mar. 18,
2017) ................................................................................................... 6
Tammy La Gorce, “On the Campaign Trail, Love Doesn’t Always
Win,” N.Y. Times (Aug. 4, 2016) ........................................................ 6

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INTEREST OF AMICI CURIAE
Amici are political professionals who have worked at the senior level of
campaigns for federal office, specifically:
•

Mark Salter, who served as chief of staff to Senator John McCain and worked as
a senior advisor on each of his presidential campaigns (2000 and 2008);

•

Ben LaBolt, who served as National Press Secretary for the Obama for America
2012 re-election campaign, as Deputy Press Secretary for Obama for America
2008, and as Press Secretary for Sherrod Brown for Senate (in 2006);

•

Howard Opinsky, who served as Press Secretary for McCain for President
(from 1998 to 2000), as Deputy Communications Director for Gramm for
President (the 1996 campaign of Senator Phil Gramm), and as Deputy
Communications Director for the Republican Senatorial Committee (from 1993
to 1995);

•

Mindy Finn, a 2016 candidate for Vice President and the Director of Digital
Strategy for Mitt Romney for President (Governor Romney’s 2008 campaign);
and

•

Hari Sevugan, who was National Press Secretary for the Democratic National
Committee (from 2009 to 2011), a Senior Spokesman for Obama for America
(2008), and held senior roles for numerous statewide campaigns.

They understand the critical importance of participation in electoral democracy and the
central role of campaigns and political parties in fostering that participation. Without
taking a position on the plausibility of the facts or claims before the Court, amici
respectfully submit this brief to share their perspective that the price for political
participation cannot become a complete forfeiture of privacy.
SUMMARY OF ARGUMENT
The wholesale hacking and indiscriminate publication of the electronic
communications of campaign officials is an anathema to American democracy. If such
conduct becomes a routine part of the political process, an untold number of

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participants (campaign and party staff, volunteers and donors) will be harmed and
future participation will be chilled. The foundational right of our political system is the
right to participate in electing our leaders. That right and the system on which it is
based will be compromised if the reckless disclosure of private facts about those
involved in campaigns becomes commonplace.
ARGUMENT
The work of campaigning at any level, and particularly in national or prominent
statewide races, is part advocacy, operations, and fundraising. Because campaign and
party staff necessarily are spread throughout the country (or state, depending on the
race) and working long hours, email and text messages are the primary modes of
communication.
Each of the amici are (or have been) willing participants in this process because
democracy is participatory and they are motivated to elect the candidates with whom
they have worked so that, once in office, those candidates may positively affect public
policy. None, however, entered the political world believing that each and every
communication bearing their name would be blasted out to the world regardless of its
content and regardless of the impact on their respective private and professional lives.
Were such haphazard disclosures to become routine, the work of electing our public
officials would change considerably and not for the better. So too the lives of those
engaged in that work. If the allegations in the complaint are true (which must be
assumed at this stage), the immunity from consequence now claimed by Defendants
Donald J. Trump for President, Inc. and Roger J. Stone would have lasting
repercussions.

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A.

Advocacy on Behalf of a Political Party or a Candidate is an
Essential Part of Democracy.

As the Supreme Court has recognized time and again, “[d]iscussion of public
issues and debate on the qualifications of candidates are integral to the operation of the
system of government established by our Constitution.” Buckley v. Valeo, 424 U.S. 1, 14
(1976) (per curiam); see Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,
564 U.S. 721, 734 (2011). Our system benefits when more people participate in those
discussions and the campaigning that facilities them. E.g., McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 357 (1995) (the very “purpose behind the Bill of Rights” is to
facilitate advocacy, even of the lone pamphleteer). Indeed, “[t]here is no right more
basic in our democracy than the right to participate in electing our political leaders,” by
“vot[ing], urg[ing] others to vote for a particular candidate, volunteer[ing] to work on a
campaign, and contribut[ing] to a candidate’s campaign.” McCutcheon v. Federal
Election Comm’n, 572 U.S. –, 134 S. Ct. 1434, 1440–41 (2014). The right to choose the
cause, candidate or party for which to campaign likewise is a core constitutional right.
See id. at 1448; Federal Election Comm’n v. Nat’l Conservative Political Action
Committee, 470 U.S. 480, 493 (1985). For these reasons, efforts to threaten or
intimidate those involved in supporting or advocating for candidates are matters of
significant federal concern. 42 U.S.C. § 1983(3).
Here, the Plaintiffs have alleged that their emails (or emails referencing private
details about them) were taken and, at the encouragement of a rival campaign,
indiscriminately published to the world. As Justice Holmes famously recognized, our
Constitution is “an experiment,” reliant upon a political system defined by a “free trade
in ideas.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

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If the price of admission to that trade is the forfeiture of any actionable privacy interest,
the marketplace will be substantially less free.
B.

The Theft and Publication of Communications of Party and
Campaign Staff Will Chill Participation in Electoral Politics.

Defendants have suggested that where an individual chooses to work for a
political party or a political campaign, every email he may have sent or received during
that time period is transformed into a matter of public concern. This suggestion is
without a limiting principle, and the logic would apply equally to modes of
communication (e.g., text messages and multiple email or private social media
platforms) and broadly to all types of campaigns for public office.
Neither the Supreme Court nor the D.C. Circuit has embraced such a sweeping
definition of public concern. In Bartnicki v. Vopper, for example, the Supreme Court
concluded that an illegally obtained recording of a short telephone conversation could
be published without civil consequence because its entire content related to a
contentious collective bargaining dispute with a public entity. 532 U.S. 514, 525, 535
(2001). Per the Court’s instruction, the decision there “‘reli[ed] on limited principles
that swe[pt] no more broadly than the appropriate context of the instant case.’” Id at
529. (quoting Florida Star v. B.J.F., 491 U.S. 524, 532–33 (1989)). Pertinently, the
holding did not extend to publishing months of recorded telephone conversations
because a few minutes of the recordings may have been newsworthy. See id. But that is
what Defendants are alleged to have encouraged here. Nearly 20,000 emails were
leaked; only a handful of them were newsworthy (even under a broad conception of that
word) and the rest ranged from the trivial to the deeply personal. See Amended Compl.
¶ 19, 42–53. That a small part of the disclosure involved matters of public concern is no

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defense to the publication of other, purely private information. See Dahlstrom v. SunTimes Media, LLC, 777 F.3d 937, 953–54 (7th Cir. 2015) (news reporting including
police officers’ “personal details both intruded on their privacy and threatened their
safety,” even where the story related “to a matter of public significance—the allegation
that the Chicago Police Department manipulated a homicide investigation”).
Defendants’ assertion that their alleged conduct is shielded from liability by the
First Amendment would have sweeping implications. In very broad strokes, parties and
political campaigns are comprised of: (i) experienced political professionals; (ii) young
people at the outset of their careers; (iii) volunteers; and (iv) donors. And campaigns
and political parties are workplaces, where emails contain all manner of personnel
records and personal details. In the grueling final months of a campaign, the work is
round-the-clock. Absences are explained on email by direct reference to health issues,
personal struggles or family concerns. What rational person would accept the blasting
out of this information to the world just because it was referenced during the course of a
campaign? Cf. United States Dep’t of Justice v. Reporters Committee for Freedom of
Press, 489 U.S. 749, 763–64 (1989) (“[B]oth the common law and the literal
understandings of privacy encompass the individual’s control of information concerning
his or her person . . . . According to Webster’s initial definition, information may be
classified as ‘private’ if it is ‘intended for or restricted to the use of a particular person or
group or class of persons: not freely available to the public’”).
More concretely for political professionals, campaign work is cyclical and the
ability to move onto the next campaign would be hindered if a record of every prior
communication from a past campaign were made available on the internet for the world
to see. Young people may desire to make a career in politics and will find themselves
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similarly inhibited. Or they may desire to pursue a different career path and find it
complicated or precluded entirely by emails from their early 20s that have been made
available online — indefinitely. That is particularly true in light of the fact the crucible
of campaign work (and its long hours) can give rise to close personal relationships,
especially among younger staff. See, e.g., Megan McDonough, “Finding Hope, and Later
Love, on the Presidential Campaign Trail,” Washington Post (Mar. 18, 2017); Tammy La
Gorce, “On the Campaign Trail, Love Doesn’t Always Win,” N.Y. Times (Aug. 4, 2016).
Finally, volunteers and donors — essential to our electoral democracy in their respective
ways — have other jobs and responsibilities, which may be compromised by the
indiscriminate publication of communications referencing their private information.
The public concern at issue here is not whether the disclosure of 20,000 of
nonpublic emails was appropriate because several of them bore some indicia of
newsworthiness. It is whether if the price of participation in American political
campaigns becomes a total forfeiture of privacy, future participation will be deterred.
Cf. Bartnicki, 532 U.S. at 537–38 (Breyer, J., concurring) (both “protecting privacy and
promoting speech are ‘interests of the highest order’”). The answer undoubtedly is yes.
C.

Campaigning Does Not Require Relinquishment of a Private
Life.

In many instances, the law protects an individual’s ability to enter the public
arena without forfeiting a private life. For example, in the analogous context of
defamation, the D.C. Circuit recognizes the concept of the limited purpose public figure.
E.g., Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 585–89 (D.C. Cir. 2016) (citing Gertz v.
Robert Welch, Inc., 418 U.S. 323, 346 (1974)). There, in determining the extent to
which defamation is actionable, the Court considers: (i) whether the individual is

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involved in “a public controversy,” (ii) whether he has “played a significant role in that
controversy” by “thrust[ing] himself to [its] forefront” and (iii) whether the publication
was “germane to the plaintiff’s participation in the controversy” or wholly unrelated to
it. Id. (citing Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296–98 (D.C.
Cir. 1980)). A similar framework should apply here. Setting aside whether all campaign
or party staff meet the “significant role” threshold, they should be protected against
defamation and the disclosure of private facts relating to purely personal matters.
In addition, federal law expressly recognizes both that the emails of federal
employees generally should be made available, and exempts the disclosure of “personnel
and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Notably, in that
context it is well established that there is no public interest in the disclosure of public
employees’ social security numbers. E.g., Int’l Bhd. of Elec. Workers Local No. 5 v.
HUD, 852 F.2d 87, 89 (3d Cir. 1988).
Similar logic should control the Court’s analysis here. The time is ripe to incent
greater participation in our democratic process. At minimum, though, the cost of
participation in our “free market” of political ideas cannot be implied consent to the
worldwide and indefinite disclosure of private facts.

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RESPECTFULLY SUBMITTED,
MARK SALTER
BEN LABOLT
HOWARD OPINSKY
MINDY FINN
HARI SEVUGAN
By their attorney,
/s/ M. Patrick Moore Jr.
M. Patrick Moore Jr.
Pro Hac Vice (motion pending)
Massachusetts BBO #670323
[e-mail]
HEMENWAY & BARNES LLP
75 State Street
Boston, MA 02109
[phone]

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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing complies with Local Civil Rule 7(o)(4) and does
not exceed 25 pages. I further certify, pursuant to Local Civil Rule 7(o)(5) and Fed. R.
App. P. 29(a)(4)(E), that I was the exclusive author of this brief and that no party,
party’s counsel, or any other person or entity contributed money that was intended to
fund this brief.
/s/ M. Patrick Moore Jr.
M. Patrick Moore Jr.

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CERTIFICATE OF SERVICE
I hereby certify that on December 8, 2017, I caused a true and correct copy of the
foregoing to be served on all counsel of record through the Court’s CM/ECF system and
via email.

/s/ M. Patrick Moore Jr.
M. Patrick Moore Jr.

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