Campaign defends site in legal filing marking departure from US policy

Emails’ publication is central to Robert Mueller’s Russia inquiry

The Trump campaign has defended WikiLeaks, arguing that it could not be held liable for publishing DNC emails stolen by Russian hackers. Photograph: Dominic Lipinski/PA

The Trump campaign argued in a legal filing that WikiLeaks could not be held liable for publishing emails that were stolen by Russian hackers ahead of the 2016 US election because the website was simply serving as a passive publishing platform on behalf of a third party, in the same way as Google or Facebook.

Questions about WikiLeaks’ publication of thousands of hacked emails, which it allegedly obtained following a plot by Russian military intelligence to steal the emails from Hillary Clinton’s presidential campaign and the Democratic party, are at the heart of Robert Mueller’s criminal investigation into possible collusion between the Trump campaign and the Kremlin.

The campaign also said in a legal filing that any alleged agreement between the Trump campaign and WikiLeaks to publish the emails could not have been a “conspiracy” because WikiLeaks’ decision to release the stolen emails was not an illegal act. The court filing was written in response to a civil lawsuit brought against the Trump campaign by two of Hillary Clinton’s donors and a former employee of the Democratic party.

The Trump campaign’s surprising defence of WikiLeaks marks a stark departure from official US policy, which has condemned the website for frequently targeting the US government and for publishing thousands of classified documents about covert policies.

Mike Pompeo, the former CIA director who now serves as Donald Trump’s secretary of state, has called WikiLeaks a “hostile non-state intelligence service” that put US lives at risk, damaged national security and was “abetted by state actors like Russia”.

Analysts say the legal filing is also significant because it hints at how officials in the Trump White House or individuals who served on the campaign may eventually seek to defend themselves against any criminal charges alleging that they conspired with WikiLeaks to release the emails.

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The legal arguments suggest the Trump White House would argue WikiLeaks was not criminally liable for the release of the emails and that it therefore would not be a criminal conspiracy to work with the website on their release.

The filing also makes the case that, under the campaign’s first amendment right to free speech, it had the right to publish information – even if it was stolen – as long as it did not participate in the theft of the emails. The hacked materials were a matter of “significant public concern”, the filing said.

The 32-page legal filing, which argued that the civil case against the Trump campaign had no merit, was written by lawyers at the Jones Day law firm, where Don McGahn, the White House counsel, previously worked.

The Trump campaign is under close scrutiny by Mueller, but the legal filing was a response to a civil complaint that was filed by the two Clinton donors and a former employee of the Democratic National Committee whose emails were hacked.

In presenting its legal defence, the Trump campaign lawyers turned to a section of the Communications Decency Act, a law that in effect gives legal immunity to big internet companies – like Facebook, YouTube and Google – and protects them from being sued for materials that are published on their platforms. The law essentially calls those companies passive publishers, and the Trump campaign is arguing WikiLeaks ought to be offered the same legal protection.

“A website that provides a forum where ‘third parties can post information’ is not liable for the third party’s posted information … Since Wikileaks provided a forum for a third party (the unnamed ‘Russian actors’) to publish content developed by that third party (the hacked emails), it cannot be held liable for the publication,” the filing said.

Mueller’s recent indictment of 12 members of the Russian intelligence unit that allegedly stole the hacked materials paints a different picture of WikiLeaks’ role in the publication of the emails, as does a 2017 intelligence assessment of the hack. Mueller’s indictment stated that the Russian “conspirators” discussed the release of the stolen documents with a group it refers to as “Organization 1” – widely believed to be WikiLeaks – in order to “heighten their impact” on the 2016 US presidential election.

Ryan Goodman, the former special counsel of the Pentagon and co-editor of the Just Security blog, said Mueller’s recent indictment indicated that WikiLeaks had played an “active role” in producing the content and the timing of the content’s disclosure of stolen emails and documents.

“That fact, which was not known before, could significantly change the calculus as to whether they could claim immunity under the Communications Decency Act [Section 230] because they are no longer playing a passive role,” he said.