October 17, 2016

Howler From CNN’s Cuomo: It’s ‘Illegal’ For Anyone But the Press to ‘Possess’ WikiLeaks Documents

CNN’s Chris Cuomo, who laughably insisted a month ago that Hillary Clinton “did not do anything illegal” in connection with her use of a private server for State Department emailing and other business, is at it again. To be clear, she did lots of things that are illegal, but a corrupt FBI and Department of Justice decided not to prosecute her.

This time CNN’s New Day co-host rendered his decidedly nonexpert legal assessment of who can and can’t “possess” purloined documents made public by WikiLeaks: “… remember, it’s illegal to possess these stolen documents. It’s different for the media. So everything you learn about this, you’re learning from us.” What arrogant nonsense.

Here’s the video:


Also interesting, remember, it’s illegal to possess these stolen documents. It’s different for the media. So everything you learn about this, you’re learning from us. And in full disclosure let’s take a look at what is in there and what it means …

Chris, we wouldn’t trust CNN to decide which information is important and “what it means” if you and your cohort were the last people on earth.

Eugene Volokh at the Washington Post’s Volokh Conspiracy blog — a rare example of a enterprise which began in New Media and was absorbed by old which still maintains its multidisciplinary integrity — ripped Cuomo’s amateur-hour claim (links are in originals and bolds are mine throughout this post):

…. Ah, isn’t it lovely to be so special, so specially immune from the law? Except it’s not at all different for the media. The First Amendment offers the same protection to the media as to the rest of us, including when it comes to possessing or distributing illegally obtained material (so long as you weren’t involved in the original illegal hack or interception or leak). Indeed, in the 2001 Bartnicki v. Vopper decision, the Supreme Court rejected even civil liability for distributing illegally intercepted cellphone calls, and expressly refused to distinguish the media from others …

… in any event, remember that, whatever First Amendment rules may apply, the media has no more First Amendment rights than the rest of us.

Remember what the distinguished UCLA School of Law professor, who among other things clerked for Sandra Day O’Connor at the Supreme Court, wrote the next time Cuomo or anyone else in the establishment press tries to claim that freedom of the press only applies to “genuine news outlets.”

As to Cuomo’s “everything you learn about this, you’re learning from us” nonsense, there aren’t strong enough words which adequately describe the insufferable and, as seen, unsupported arrogance on display.

Volokh referred readers to reporter Jacob Gershman at the Wall Street Journal, who added much more from other genuine subject matter experts, including the following (links are in original):

First Amendment Experts: Downloading Hacked Clinton Campaign Emails Not a Crime

“It’s highly unlikely—I would say unimaginable– that the simple downloading of documents made public by WikiLeaks is criminal,” Floyd Abrams of Cahill Gordon tells Law Blog via email. “I don’t know of any case that so holds or statute that requires such a result.”

… George Washington University law professor Jonathan Turley also weighs in over at his blog.

“While technical arguments could be made that downloading is a form of possession of stolen documents, it is a dubious argument when the material is widely distributed and a matter of public interest,” writes Mr. Turley. “The weight of the existing case law militates heavily against the legal threat described on CNN.”

Cuomo’s only fig leaf is Abrams’ opinion that “‘whether in this area the press receives any greater rights than anyone else’ is a broader question likely to be addressed some day by the Supreme Court.”

Perhaps, but I can guarantee that legal wannabe Chris Cuomo will not only be uninvolved in arguing that case, his idea that we can only learn “everything” about the contents of such documents — really meaning only what they’re willing to tell us — from him and his ilk at CNN will ultimately fail to survive the laugh test in federal court.

Cross-posted at NewsBusters.org.


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