A new civil complaint has been filed against the Trump campaign, and it is perhaps the most compelling private case filed so far, because it focuses powerfully on the Russian hacking conspiracy with three plaintiffs who were concretely harmed by the release of private information. In Cockrum et al. v. Donald Trump for President, the plaintiffs have solid standing and a firm foundation in a statutory claim: long-standing civil rights law protecting voting rights and privacy from intimidation and harm. One question that needs to be resolved is about whether it fits the requirement for “state action” by the defendant, but the history of the statute should help answer this question. And because the conspiracy involved interstate (and international) electronic conduct, the Interstate Commerce Clause should be sufficient to extend this statute to these (quasi-)private actors.
Each plaintiff has a compelling story of harm, because the hacking conspiracy released deeply private information or sensitive financial and contact information. The complaint sets out step-by-step the facts suggesting the coordination between Russian hackers and the Trump campaign, and it is actually a riveting weaving of many strands and events over the past year.
The legal theory comes from statutes passed after the Civil War to protect civil rights during Reconstruction (it was originally called the Ku Klux Klan Act of 1871, or the Enforcement Act, and these set of statutes were intended to address non-state actors organized to intimidate). The statutory basis is 42 U.S.C. Section 1985(3):
(3)Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire … for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
This statute directly addresses conspiracies to intimidate voters or injure voters because of their support for a candidate. The hackers knew that they were releasing private financial and other private information, and that knowledge is enough to constitute a conspiracy of intimidation, even if it was not their primary goal. The very goal of hacking was to release private information, without regard to whose privacy would be infringed. And it is certainly plausible from the facts that one of the goals of the hacking was to intimidate the Clinton campaign and its supporters — including these plaintiffs — from participating in the election. There are certainly many others who could have brought this suit, but these three plaintiffs have a strong case. And the plaintiffs do not need to be targeted because of race. They have a valid case if their freedom of association and political support is targeted. For background on how Section 1985 has been applied broadly, see this piece.
There is some question, under the precedents, about whether the defendants need to be state actors or officials. Keep in mind that these statutes were originally passed to protect against the KKK, non-state actors who organized to intimidate. The concept here is acting “under the color of state law,” so that a private actor is covered by the statute’s requirements. The question may be if a campaign is a quasi-state actor. Courts have also allowed the Commerce Clause to be the basis for extending this law to private parties, but these cases have been curtailed. See Griffin v. Breckenridge, 403 U.S. 88 (1971) and Scott, 103 S.Ct. at 3357. As I noted before, the interstate/international hacking, like wire fraud, is covered by interstate commerce, and thus the statute through the Interstate Commerce Clause should apply to this particular conduct. More work needs to be done in this area.
This case may seem redundant with Mueller’s investigation and the Senate and House investigation, but what if Trump fires Mueller? What if the House and Senate Republicans stall? A civil case offers the advantage of decentralized access of discovery, and potentially a more public investigation while the other institutions move secretly and slowly.