//  5/16/18  //  Commentary

On Thursday, the one year anniversary of Special Counsel Robert Mueller’s appointment, attorneys for Donald Trump will stand up in a court of law to answer questions for the first time related to Russia. But it won’t be in the Mueller investigation. Three Americans, two philanthropists and a political staffer, whose personal information was released by Wikileaks sued the Trump campaign last July alleging civil conspiracy between Russia, Wikileaks, and the Trump Campaign that personally harmed them. In particular, they claim that the publication of hacked private emails was also an attack on their fundamental right to participate in a presidential election. On May 17, a judge in Washington, DC, will hear arguments in Cockrum v. Trump Campaign and Roger Stone and decide whether the plaintiffs can proceed to discovery.

Almost one year after Protect Democracy, the nonpartisan organization representing the plaintiffs, filed suit here’s what we do know: there’s no doubt that Russians hacked Democratic National Committee computers, leading to release of thousands of documents containing personal information about hundreds of people. Among other harms, this release brought identity theft and personal distress on the Cockrum plaintiffs. The Trump Campaign and Roger Stone have exhibited intent, motive, and ability to conspire in order to affect the outcome of the 2016 election, through the release of emails and other tactics. And they’ve aggressively concealed their interactions. This case, which has received little attention to date, may lead to greater understanding about the scope and form of coordination between the Trump campaign and Russia.

The law is clear that such public disclosure of private facts is an invasion of privacy and a basis for a lawsuit for money damages. It also constitutes the intentional infliction of emotional distress, which in itself is a legally recognized claim. And importantly, this sort of intimidation of American citizens participating in the political process violates a civil rights law, the so-called Ku Klux Klan Act, passed by Congress at the end of the 19th century. The plaintiffs are thus suing for violation of their rights under long-established legal principles.

At this stage of civil litigation, the judge will be asking only if plaintiffs alleged “plausible claims” of a conspiracy. And their claims easily clear that bar. The Cockrum complaint pulls together evidence already made public—some of it in indictments and guilty pleas in the Special Counsel’s investigation—and shows the strong basis for believing a conspiracy occurred. Additionally, in a remarkable amicus filing, a group of national security professionals, including former directors of the Central Intelligence Agency and the National Security Agency, argued that the actions taken by Russian intelligence in this election and described in this complaint fit a pattern of Russian interference in democracies across the world.

Discovery in this lawsuit offers a chance to learn what role the Trump campaign had in encouraging this invasion of privacy—and this assault on our democracy—by Russia and Wikileaks. And thus, it provides a great service to the nation. Robert Mueller is conducting a criminal investigation. Congressional investigations may be coming to an end. The rules governing civil discovery create an opportunity for the plaintiffs to obtain relevant evidence and prove their case that the conspiracy that caused them serious harms. This will deter the defendants and others inclined to intimidate citizens who wish to participate in the political process.

Never in American history has a foreign government systematically attempted to influence the outcome of our elections. If this was done with the awareness and involvement of a presidential campaign, we should be outraged and gravely concerned about the integrity of our electoral system, the foundation of our democracy. This lawsuit is a vehicle to learning what happened and identifying steps to ensuring it never occurs again.

How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

How To Decide A Very Close Election For Presidential Electors: Part 3

10/28/20  //  In-Depth Analysis

We conclude our examination of close presidential elections by taking a deep dive into Florida in 2000. Was the December 12, 2000 deadline really as firm as it seemed to the courts and some of the parties, or could the count have proceeded?

How To Decide A Very Close Election For Presidential Electors: Part 2

10/23/20  //  In-Depth Analysis

The Kennedy-Nixon election in 1960 in Hawaii went to a recount. How Hawaii dealt with it—with two sets of electors casting two sets of electoral votes—provides a model for how to handle very close elections.