[EL] WikiLeaks and Press Exemption

Fri Jan 25 15:41:46 PST 2019

Vlad, I respond very briefly to Rick’s media exemption point near the end of this piece that just went up on Just Security:  https://www.justsecurity.org/62369/roger-stone-indictment-campaign-finance-law-crimes/

And the complaint I filed with the DOJ last February regarding the AMI payment to McDougal goes into the media exemption analysis in more detail beginning a paragraph 29: https://www.commoncause.org/wp-content/uploads/2018/11/CC-v.-Trump-AMI-McDougal-Payment_Signed-DOJ-Complaint_2.20.18.pdf

Best,

Paul Seamus Ryan | Common Cause | Vice President, Policy & Litigation
Office: 202-736-5716 | Mobile: 202-262-7315 | @ThePaulSRyan
805 Fifteenth Street NW, Suite 800|Washington, DC 20005

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
Sent: Friday, January 25, 2019 6:13 PM
To: Kogan, Vladimir <kogan.18 at osu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] WikiLeaks and Press Exemption

I don’t have time to go into details now, but there are court cases and FEC rulings on the media exemption that define what a legitimate press function is. The exemption only applies to those engaging in a legitimate press function. I think a strong argument can be made that “catch and kill” is not a legitimate press function. I spoke to a lot of reporters on this question when the National Enquirer story broke, and there is unanimity that catch and kill is not a valid journalistic practice.

In contrast, journalists often receive information, often from government officials or unanimously, which they then publish or report on. Is that what Wikileaks was doing?  I’d argue no, since they didn’t engage in any other journalistic functions, and this much more like they were a conduit for Russian intelligence officials. But others think that is too fine a line to draw.

Does that help?

Rick

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of "Kogan, Vladimir" <kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>>
Date: Friday, January 25, 2019 at 3:04 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] WikiLeaks and Press Exemption

Hi Rick,

I have a question about this paragraph in your Slate column:

“So why did Mueller not charge Stone with violating campaign finance laws along with the other charges in the indictment? We don’t know for sure, but there are a few possibilities. … One possibility is that because WikiLeaks might count as a “news organization,” different campaign finance rules should apply. For example, one can imagine a presidential campaign official seeking out information with reporters from a foreign newspaper like the Guardian. We treat journalists differently for a number of campaign finance purposes, and it might be that WikiLeaks is shielded in a way that other foreign entities are not. Indeed, Glenn Greenwald and Trevor Timm, writing at the Intercept, attacked the DNC for suing WikiLeaks over the hack of DNC emails, arguing that such a suit interferes with the press’s freedom to cover leaked information.”

I’m curious how to square that with the Karen McDougal/National Inquirer issue. Presumably David Pecker was worried enough about his exposure that he entered into a cooperation agreement.

The argument for why the National Inquirer did not qualify for a press exemption, as far as I understand it, was that working with a campaign to “catch and kill” a story is not part of their “ordinary business operation.” Yet, why would WikiLeaks get the press exemption for (allegedly) working with a campaign for facilitating the hacking and release of a rival candidate’s e-mails? Is it because hacking and releasing private e-mails is part of their “ordinary business operation?”

If so, that seems like a strange outcome. A tabloid that normally prints salacious gossip loses its press exemption when it doesn’t do so to help a candidate it supports. Yet WikiLeaks doesn’t lose its press exemption when it works with a campaign to help the same candidate in other ways?

I’m just curious to hear the full argument, from you or others. (I realize this was just one possibility you suggested was possible; you didn’t definitely argue this was the case.)

Thanks,

Vlad

[The Ohio State University]
Vladimir Kogan, Associate Professor
Department of Political Science
2004 Derby Hall | 154 N. Oval Mall, Columbus, OH 43210-1373
510/415-4074 Mobile
614/292-9498 Office
614/292-1146 Fax
http://u.osu.edu/kogan.18/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fu.osu.edu%2Fkogan.18%2F&data=02%7C01%7Cpryan%40commoncause.org%7C55824393524a4a80113008d6831ac181%7Cdb39e4b4de324cf9b66e9d02d8172178%7C0%7C0%7C636840548276395946&sdata=Inqf4YcuDT9tw0EEj80CijVp5MboBZfxDWGWRdLBk7M%3D&reserved=0>
kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>
[Twitter icon]@vkoganosu<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Ftwitter.com%2Fvkoganosu&data=02%7C01%7Cpryan%40commoncause.org%7C55824393524a4a80113008d6831ac181%7Cdb39e4b4de324cf9b66e9d02d8172178%7C0%7C0%7C636840548276395946&sdata=tEnnLcAcOLS0KVPA5diil7hATiNdoB%2FnxdYwtaQJDZY%3D&reserved=0>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190125/c5175dac/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 3606 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190125/c5175dac/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.gif
Type: image/gif
Size: 1352 bytes
Desc: image002.gif
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190125/c5175dac/attachment.gif>