Democratic National Committee v. The Russian Federation et al

Filing 225

MEMORANDUM OF LAW in Support re: #224 MOTION to Dismiss the Second Amended Complaint. . Document filed by WikiLeaks. (Dratel, Joshua)

Case 1:18-cv-03501-JGK Document 225 Filed 03/04/19 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------X
DEMOCRATIC NATIONAL COMMITTEE, :
Plaintiff,

:

- against -

:

THE RUSSIAN FEDERATION, et al.,

18 Civ. 3501 (JGK)

:

Defendants.
:
--------------------------------------------------------X

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT WIKILEAKS’S PRE-TRIAL MOTION TO DISMISS
THE SECOND AMENDED COMPLAINT

Joshua L. Dratel
JOSHUA L. DRATEL, P.C.
29 Broadway, Suite 1412
New York, New York 10006
(212) 732 - 0707
[e-mail]
Attorney for Defendant WikiLeaks

Case 1:18-cv-03501-JGK Document 225 Filed 03/04/19 Page 2 of 14

TABLE OF CONTENTS
Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT
POINT I
THE CLAIMS AGAINST WIKILEAKS IN THE SECOND AMENDED
COMPLAINT SHOULD BE DISMISSED FOR THE REASONS SET
FORTH IN WIKILEAKS’S INITIAL MOTION TO DISMISS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.

The SAC Fails to Cure Several of the Fundamental Fatal Defects
in the FAC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.

2.

B.

The SAC Fails to Cure the Insufficiency of the Theft of
Trade Secrets Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The SAC’s Additions Fail to Rescue the Racketeering
Claims from Dismissal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Additions in the SAC Support WikiLeaks’s Motion to Dismiss.. . . . . . . . . . . . . . . . . . 6

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF AUTHORITIES
CASES
Albright v. Attorneys Title Ins. Fund, 504 F.Supp.2d 1187 (D. Utah 2007) .. . . . . . . . . . . . . . . . . 5
Barsam v. Pure Tech Int'l, Inc., 864 F. Supp. 1440 (S.D.N.Y. 1994). . . . . . . . . . . . . . . . . . . . . . . 5
Elsevier Inc. v. Doctor Evidence, LLC, 2018 WL 557906 (S.D.N.Y. Jan. 23, 2018). . . . . . . . . . . 3
Grunewald v. United States, 353 U.S. 391 (1957).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
Krulewitch v. United States, 336 U.S. 440 (1949).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Lutwak v. United States, 344 U.S. 604 (1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Netyksho, 18 Cr. 215 (ABJ) (D.D.C.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Marcus Schloss & Co., 710 F. Supp. 944 (S.D.N.Y. 1989).. . . . . . . . . . . . . . . . . 4

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STATUTES
18 U.S.C. §251.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
18 U.S.C. §1503.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18 U.S.C. §1512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18 U.S.C. §1831 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
18 U.S.C. §1839(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
18 U.S.C. §1839(a)(3)(A)-(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
18 U.S.C. §1963.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
47 U.S.C. §230.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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Introduction
This Supplemental Memorandum of Law is submitted on behalf of defendant WikiLeaks
in support of its Motion to Dismiss Plaintiff’s Second Amended Complaint (“SAC”) (ECF Dkt #
217), and supplements WikiLeaks’ previously filed Motion to Dismiss the First Amended
Complaint (ECF Dkt # 208) (WikiLeaks’s Initial Motion”). This Supplemental Memo of Law
respectfully incorporates by reference WikiLeaks’s Initial Motion and applies it to the SAC.
WikiLeaks also joins in the joint Memorandum of Law filed today on behalf of all defendants
(“Defendants’ Joint Memo”).
The SAC does not add much with respect to WikiLeaks, and certainly nothing of
substance. It does not add any claims for relief; nor does it allege any conduct that could support
a cause of action, or legitimately contribute to the insufficient allegations in the First Amended
Complaint (“FAC”), or challenge WikiLeaks’s position as a publisher fully protected by the First
Amendment – just like so many other media organizations that have published and continue to
publish the same and other similar material.
Indeed, as set forth below, examination and analysis of that which the SAC adds
regarding WikiLeaks – including a highly publicized subsequent indictment that again places
WikiLeaks solely in a publishing role without any allegation of legal liability – merely reinforces
quite convincingly WikiLeaks’s initial motion to dismiss. Thus, this Supplemental Memo of
Law is directed solely at the material added to the SAC.
Accordingly, for the reasons set forth below, as well as in WikiLeaks’s initial Motion to
Dismiss, and the motions to dismiss filed by other defendants, it is respectfully submitted that
WikiLeaks’s motion to dismiss the SAC should be granted in its entirety.
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ARGUMENT
POINT I
THE CLAIMS AGAINST WIKILEAKS IN THE SECOND AMENDED
COMPLAINT SHOULD BE DISMISSED FOR THE REASONS
SET FORTH IN WIKILEAKS’S INITIAL MOTION TO DISMISS
A.

The SAC Fails to Cure Several of the Fundamental Fatal Defects in the FAC
As a threshold matter, the SAC is more notable for what it does not contain than for what

it amends. As noted above, the SAC does not add any causes of action against WikiLeaks. The
SAC does not provide any information that would undermine in any respect WikiLeaks’s role
simply as a publisher of the materials at issue, a function fully protected by the First Amendment
as set forth in WikiLeaks’s Initial Motion at POINT I (pp. 3-9). The same is true with respect to
WikiLeaks’s immunity as an interactive computer service pursuant to 47 U.S.C. §230, covered in
POINT II (pp. 10-12)
Nor does the SAC add any allegations that would overcome the lack of personal
jurisdiction over WikiLeaks, as discussed in WikiLeaks’s Initial Motion at POINT VI (pp. 1923), or establish venue in the Southern District of New York. Id., at POINT VII (pp. 23-25).
Likewise, the SAC does not alter the insufficient claims pursuant to 18 U.S.C. §251 intercepted
communications claim (Claim IV), addressed in WikiLeaks’s Initial Motion at POINT IV (pp.
17).
1.

The SAC Fails to Cure the Insufficiency of the Theft of Trade Secrets Claim

The SAC does tweak the language of Plaintiff’s trade secrets claim pursuant to 18 U.S.C.
§1831 , but to no avail, as the SAC fails to cure the several statutory deficiencies pointed out in
WikiLeaks’s Initial Motion, at POINT V (pp. 17-19), and like the FAC still does not describe
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anything that satisfies §1839(a)(3)’s definition of a trade secret. For example, at ¶ 156, the SAC
alleges as trade secrets, “donor lists and detailed proprietary fundraising strategies based on the
[Democratic National Committee’s] analysis of trends in donation data collected over years.”
Yet that does not describe the necessary “narrow category of confidential information,”
see Elsevier Inc. v. Doctor Evidence, LLC, 2018 WL 557906, at *2 (S.D.N.Y. Jan. 23, 2018),
constituting “financial, business, scientific, technical, economic, or engineering information . . .”
18 U.S.C. §1839(a)(3)(A)-(B). See Elsevier, 2018 WL 557906, at *2 (“‘confidential
information’ is not equivalent to ‘trade secrets’”). See also WikiLeaks’s Initial Motion, at 18.
In addition, the SAC adds statutory language – in particular, that the purported trade
secrets were acquired “intending or knowing that those offenses would benefit the Russian
government, Russian instrumentalities, or Russian agents,” and including precise subsections of
18 U.S.C. §1831, see ¶¶ 277-78, 280, 282-83, 287-88 – but still has not made any factual
allegation to support such claims against WikiLeaks. Consequently, the trade secret claims still
fail to state a claim against WikiLeaks. See also WikiLeaks’s Initial Motion, at 17-19.
2.

The SAC’s Additions Fail to Rescue the Racketeering Claims from Dismissal

The SAC does seek to expand the nature of its claims pursuant to the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §1963, by adding allegations
with respect to events occurring after the 2016 election that the SAC contends establishes
obstruction of justice and witness tampering aimed at “solidify[ing]” Donald Trump’s “grip on
the presidency.” See SAC, at ¶¶ 5.
However, both general case law and specific RICO jurisprudence, as well as the lack of
any pleaded facts with respect to WikiLeaks, preclude Plaintiff’s attempt to extend the alleged
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RICO enterprise’s and/or racketeering activity’s “continuity.” See also WikiLeaks’s Initial
Motion, at 16. As a result, the RICO claims remain fatally flawed, and the SAC does not salvage
them. See also Defendants’ Joint Memo, at Point III(C)(2).
For instance, in Grunewald v. United States, 353 U.S. 391 (1957), the Supreme Court
rejected the government’s attempt to extend the charged conspiracy beyond the accomplishment
of its object by including subsequent efforts to conceal it from detection. In Grunewald, the
government argued – in an effort to avoid the expiration of the statute of limitations – that acts of
concealment that occurred within the limitations period could “be deemed part of the conspiracy
and . . . extend its duration.” 353 U.S. at 399.
Grunewald relied upon Krulewitch v. United States, 336 U.S. 440 (1949), in which the
Supreme Court “rejected the . . . contention that in every conspiracy there is implicit an
agreement as a part thereof for the conspirators to collaborate to conceal the conspiracy.” 336
U.S. at 455, citing Lutwak v. United States, 344 U.S. 604, 616 (1953). Grunewald represented
the third time the Supreme Court affirmed the principle that
after the central criminal purposes of a conspiracy have been
attained, a subsidiary conspiracy to conceal may not be implied
from circumstantial evidence showing merely that the conspiracy
was kept a secret and that the conspirators took care to cover up
their crime in order to escape detection and punishment.
Grunewald, 353 U.S. at 401-02; see also United States v. Marcus Schloss & Co., 710 F. Supp.
944, 947 (S.D.N.Y. 1989) (applying Grunewald to hold that “a joint effort by some of those
involved” in the original conspiracy “to cover up their crime . . cannot form a part of the original
conspiracy, in the absence of proof of an express original agreement on the part of the
conspirators to commit and suborn perjury . . . if the conspiracy was detected”).
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In the RICO context, just as under Grunewald acts of concealment or allegations of a
cover-up cannot be used to extend the life of the initial conspiracy, “efforts at covering up the
initial fraudulent act are inadequate to satisfy the continuity requirement of the RICO statute.”
Barsam v. Pure Tech Int'l, Inc., 864 F. Supp. 1440, 1450 (S.D.N.Y. 1994), vacated pursuant to
settlement, 907 F. Supp. 79 (S.D.N.Y. 1995) (collecting cases); see also Albright v. Attorneys
Title Ins. Fund, 504 F.Supp.2d 1187 (D. Utah 2007) (“attempts merely to conceal an underlying
illegal predicate act are not sufficient to establish the open-ended continuity required for RICO
claims”). Thus, the case law decidedly forecloses the SAC’s attempt to rescue its RICO claims.
See also Defendants’ Joint Memo(s), at Point III(C)(2).
In addition to that dispositive deficiency as a matter of law, the SAC does not plead any
post-election facts that could include WikiLeaks within any RICO conduct or conspiracy, or any
other tortious conduct. As a result, while the SAC makes omnibus obstruction-related
accusations against the “defendants,” see SAC, at ¶¶ 276, 291 & 295, pursuant to 18 U.S.C.
§1503 (obstruction of justice), and 18 U.S.C. §1512 (relating to tampering with a witness, victim,
or an informant), notably absent are any communications from or to WikiLeaks regarding the
alleged cover-up involving Roger Stone, Jerome Corsi, and Randy Credico (or anyone else).
Indeed, the SAC, at ¶ 207, alleges an electronic communication that entirely refutes any
assertion that WikiLeaks participated in any post-election concealment: “On November 9, 2016,
the same day Trump won the 2016 election, WikiLeaks sent a private message to Stone on
Twitter: ‘Happy? We are now more free to communicate.’” An invitation to speak more freely

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demonstrates the opposite of a cover-up.1 Also, that Twitter message was cited not in the Stone
Indictment, but rather in a February 2017 magazine article (See SAC, at 13, n.181) that also
noted that WikiLeaks had earlier, in October 2016, in another private Twitter message, cautioned
Mr. Stone against making “false claims of association” between WikiLeaks and Mr. Stone.
Indeed, the article concludes that the “substance of the messages [between Mr. Stone and
WikiLeaks] does seem to corroborate, however, Stone and WikiLeaks’ denials prior to October
13 that they had coordinated in any significant way.” Id.
Accordingly, the SAC’s amendments fail to cure the FAC’s numerous defects.
Consequently, the SAC fails to state a viable RICO cause of action, or any other cause of action,
against WikiLeaks.
B.

The Additions in the SAC Support WikiLeaks’s Motion to Dismiss
Indeed, the SAC is perhaps more remarkable for what limited additional information it

does include with respect to WikiLeaks, as those additions – which either refute Plaintiff’s
allegations of wrongdoing, or consist merely of unsubstantiated and discredited hearsay reports
that are immaterial to the issues in this case – demonstrate the patent insufficiency of the
allegations against WikiLeaks, and support WikiLeaks’s motion to dismiss.
For example, references to the indictment of Roger J. Stone, Jr., United States v. Stone,
1

In addition, the SAC still fails to identify any damages cognizable under RICO, and/or
which can be attributed to WikiLeaks’s alleged conduct (even if it were actionable). At ¶ 254,
the SAC alleges that “[t]he DNC bore the cost of all of these activities, including purchasing new
computer hardware and equipment, paying for an ongoing hacking-monitoring services
subscription (capable of detecting Cozy Bear, Fancy Bear, and similar intruders).” Yet all of
those claimed damages are unrelated to WikiLeaks’s publication of the materials, as the preexisting cyber-intrusion alone was responsible for requiring those security measures and
attendant costs. See also Defendants’ Joint Memo(s) at Point III(D).
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19 Cr. 18 (ABJ) (D.D.C.) (ECF #1) (“Stone Indictment”), see SAC, at ¶¶ 58, 170, 174, 176 &
215, reinforce the conclusion that WikiLeaks’s publication of the materials constituted neither a
crime nor conspiratorial activity. The Stone Indictment, which was the product of a federal grand
jury proceeding replete with the panoply of sophisticated, intrusive, and exhaustive investigative
measures, like the previous indictment in United States v. Netyksho, 18 Cr. 215 (ABJ) (D.D.C.)
(ECF Dkt #1) (“Netyksho”), see WikiLeaks’s Initial Motion, at 5 & n. 5, and other charges
instituted by the Special Counsel, does not allege any wrongdoing by WikiLeaks.
The Stone Indictment identifies WikiLeaks as “Organization 1” – not as a co-conspirator
or participant in criminal conduct any respect. See Stone Indictment, at ¶¶ 3. In fact, the criminal
conduct alleged in the Stone Indictment is not any of the alleged communications involving
WikiLeaks, or WikiLeaks’s conduct, but rather Mr. Stone’s alleged lies to investigators. Id., at
¶¶ 43.
Further rebutting its allegations of WikiLeaks’s membership in any conspiracy, the SAC
notes that
Though [sic] October 2016, GRU Operatives using the screenname
Guccifer 2.0 “release[d] documents through WordPress that they
had stolen from [a Democratic organization] and [the] DNC.”[] For
example, on October 18, 2016, the GRU Operatives posted
screenshots on WordPress of previously-unreleased documents
stolen from the DNC.[]
SAC, at ¶ 195, quoting Netyksho, at ¶ 43, and Guccifer2, Trump’s Taxes: Clinton Campaign
Prepares A New Provocation, Wordpress (Oct. 18, 2016), available at
<https://guccifer2.wordpress.com/2016/10/18/trumps-taxes/>.
Thus, consistent with WikiLeaks’s limited and protected role as a publisher, even after

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WikiLeaks published certain materials, it was not the source of additional subsequent disclosures
by those the SAC claims hacked Plaintiff’s servers.
Other amendments to the FAC are so specious and/or lacking in any probative value that
they illustrate Plaintiff’s recognition that the FAC was, and the SAC is, plainly insufficient to
state any cause of action against WikiLeaks. Indeed, if Plaintiff possessed and could plead
sufficient facts with respect to WikiLeaks, it would not be compelled to resort to such frivolous
and/or irrelevant contentions as have been added to the SAC.
For example, at ¶ 221, the SAC alleges that “[l]ike Russia, Assange and WikiLeaks also
worked to undermine the Special Counsel’s investigation[]” by tweeting July 29, 2017, the
question, “Will Special Prosecutor Robert Mueller Fabricate The Results Of His Investigation
Like He Did With Iraq?” Of course, the SAC cannot provide any connection between that query,
posed nine months after the 2016 election and a year after WikiLeaks initial publication of the
materials at issue, and the allegations and causes of action in the SAC.
Similarly, the SAC again leaps to the preposterous at ¶ 232 (and ¶ 31) with its inclusion
of the claim that “]i]n August 2017, Russia attempted to hack into the Senate computer network
of Democratic Senator Claire McCaskill – a longtime critic of Trump, Russia, and WikiLeaks –
and the networks of two other midterm candidates.” How that alleged attempted hack implicates
WikiLeaks (and/or warrants its inclusion in that paragraph) beyond the scurrilous hopelessly
attenuated guilt-by-association tenor of the allegation, the SAC fails to, and cannot, explain.2
2

In April 2017, much closer in time to the attempted hack alleged in ¶ 232, then-Senator
McCaskill criticized a “single-payer” health care system, a proposal championed by Senator
Bernie Sanders (I – Vt.). It is unclear why Sen. Sanders was not included in ¶ 232 as among the
reputed suspects who had an interest in or motivation for the attempted hack. See Will Schmitt,
“McCaskill opposes single-payer health care, takes voters' questions at Springfield town hall,”
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Similarly, further grasping at straws that are nevertheless out of reach, the SAC, at ¶ 79,
plumbs the depths of fancy – and an hypothesis built solely and precariously upon that fiction –
alleging that
Upon information and belief, Assange and WikiLeaks worked to to
secure Trump’s grip on the Presidency even after the 2016 election
because of Trump’s favorable view of WikiLeaks, and because of
the Russian government’s inclination to assist Assange with
asylum. In fact, reports have indicated that Russia even
participated in a plan to facilitate Assange’s escape from the
Ecuadorian Embassy in London and fly him to Russia.
Of course, the SAC fails to provide any citation for that multi-tiered supposition
(notwithstanding the SAC’s 232 endnotes). Yet, in the absence of competent, credible, or
probative evidence against WikiLeaks, the SAC is forced to resort to such speculation. Another
example of the SAC’s immersion in immaterial scuttlebutt is found in ¶ 235, in which the SAC
alleges that
On October 11, 2018, WikiLeaks released a proprietary AWS
document showing the locations and some operational details of
AWS servers around the world. This was one of WikiLeaks’ only
releases since Assange and WikiLeaks’ activities were constrained
in the wake of the 2016 election. Analysts noted that the leaked
AWS information would be incredibly valuable for those trying to
compromise AWS servers like the ones that house the DNC’s
documents and data – i.e., Russia.
What connection that alleged event, nearly two years after the 2016 election, has to this
case, and what probative value it possesses, remains a mystery that the SAC does not endeavor to
explore, much less solve. Again, this kitchen-sink approach reveals the insufficiency of the

Springfield News-Leader, April 14, 2017, available at
<https://www.news-leader.com/story/news/politics/2017/04/14/mccaskill-opposes-single-payer-s
ystem-springfield-town-hall/100346878/>.
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SAC’s allegations against WikiLeaks.
Conclusion
Accordingly, for all the reasons set forth above, as well as in WikiLeaks’s Initial Motion,
and any other defendants’ motions, including Defendants’ Joint Memo(s), it is respectfully
submitted that Plaintiff’s Second Amended Complaint against WikiLeaks be dismissed in its
entirety.
Dated: 4 March 2019
New York, New York
Respectfully submitted,
/S/ Joshua L. Dratel
Joshua L. Dratel
Joshua L. Dratel, P.C.
29 Broadway, Suite 1412
New York, New York 10006
[phone]
[e-mail]
Attorneys for Defendant WikiLeaks
– Of Counsel –
Joshua L. Dratel
Whitney G. Schlimbach

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