The campaign’s lawyers argued that the plaintiffs hadn’t made a “plausible” case that the campaign and the Russians engaged in a “collaborative” effort to release the plaintiffs’ emails to influence the election. But they seemed to acknowledge the emails’ value: “The DNC emails clearly deal with matters of significant public concern.”

Their argument is timely, and troubling: The midterm elections, less than 30 days away, are as vulnerable to hackers who steal information and then dump it onto the web to influence voters as the presidential election was two years ago. Both parties face high stakes: Democrats hope to take back the House and the Senate, whereas Republicans are clinging to their majorities as a wave of GOP lawmakers chooses not to run for reelection. So far, however, only House Democrats have pledged not to use stolen or hacked materials in their campaigns this fall. As I reported last month, their Republican counterparts declined to match that commitment—and “one of the major sticking points” was how to address the press coverage of hacked materials.

“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest,” the Trump campaign’s lawyers wrote in their brief. They went on to justify the disclosure of the hacked materials by arguing that they were in the public interest. “Every disclosed email was (1) a work email (2) sent or received by a political operative (3) during a presidential campaign,” they wrote. “Indeed, the disclosed emails dealt pervasively with important public issues. They revealed the Democratic Party’s conduct during its presidential primaries—which are public processes ‘structur[ed] and monitor[ed]’ by the state. They revealed the DNC’s interactions with rich donors—educating citizens about the influence of ‘moneyed interests.’ And they revealed the closeness of the party’s ties to the media.” (Here, again, the lawyers seem to be emphasizing the value of the emails, which could prove problematic with regard to campaign-finance laws.)

Experts fear that the continued use of hacked documents by campaigns only encourages cybercriminals to keep meddling in U.S. elections. While it is often difficult to differentiate between material that has been leaked and material that has been hacked, “there should be” a cohesive policy used to distinguish between the two, Clint Watts, a senior fellow at the Center for Cyber and Homeland Security at George Washington University and a Foreign Policy Research Institute fellow, told me earlier this year.

In 2017, shortly after being named CIA director, Mike Pompeo—now the secretary of state—deemed WikiLeaks a “non-state hostile intelligence service” because it provided Russia with a platform to interfere in the election. The Trump campaign’s lawyers, however, went so far as to defend the so-called radical transparency organization in their brief. “Wikileaks cannot be held liable for the publication” of the hacked DNC emails because it was merely an intermediary, and not liable for the Russians’ hack-and-dump scheme, they wrote. “A conspiracy is an agreement to commit ‘an unlawful act.’ Since WikiLeaks’ posting of emails was not an unlawful act, an alleged agreement that it should publish those emails could not have been a conspiracy.”

This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.

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