Filiberto Agusti
202 429 6428 direct
202 261 7512 fax
fagusti@steptoe.com

1330 Connecticut Avenue, NW
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September 25, 2018
BY EMAIL
Jeremy Kutner
Deputy General Counsel, ProPublica
jeremy.kutner@propublica.org
Ivan Zimmerman
General Counsel, New York Public Radio
izimmerman@nypublicradio.org
Re: Elliott Broidy
Dear Mr. Kutner and Mr. Zimmerman,
Our law firm represents Elliott Broidy. We understand that your reporter Andrea
Bernstein is working on a story this week regarding Mr. Broidy for “Trump, Inc.” a podcast
collaboration between ProPublica and WNYC. We write today to express our serious concerns
regarding your reporting activity. Ms. Bernstein recently contacted Mr. Broidy’s press
representatives with a series of questions regarding various emails that criminal hackers have
chosen for publication from a library of Mr. Broidy’s emails illegally obtained. The release of
these emails to the press is part of a foreign power’s sophisticated campaign to smear a
prominent U.S. citizen who has spoken out against its policies, a fact of which we suspect you
are well aware. While we recognize that the Supreme Court has protected certain republication
of illegally obtained materials, the press’s systematic cooperation with agents of a foreign power
bent on destroying the reputation of an American citizen through serial publication of stories on
different subjects curated by the foreign power puts this matter in a different category entirely.
For years, Elliott Broidy has been a vocal advocate of U.S. support for Israel. His
position on Israel has also led him to be critical of state sponsors of terrorism in the Middle East,
especially the State of Qatar. In 2017, for instance, Mr. Broidy sponsored seminars to highlight
Qatar’s support for the Muslim Brotherhood. Qatar has itself engaged in a “charm offensive” to

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answer critics in the United States, such as Mr. Broidy. Were its activities limited to innocuous
stunts like paying for the Washington D.C. Metro to stay open late during a Washington Capitals
playoff game, we would have no reason to write this letter. But the evidence shows that its
“offensive” appears to have gone well beyond “charm” into illegal and nefarious activities. And
Mr. Broidy has been one of its principal targets.
In early 2018, Elliott Broidy, his family and his businesses were the victim of a
sophisticated hacking and selective leaking campaign orchestrated by Qatar. The hacking is the
subject of a lawsuit filed by Mr. Broidy in California federal court against the Qatar and a group
of foreign and domestic co-conspirators—mostly paid by and acting at the direction of Qatar—
who collectively sought to destroy Mr. Broidy’s reputation through sequenced releases of
carefully curated selections of Mr. Broidy’s emails. (Broidy Capital Management LLC v. State
of Qatar, No. 2:18-cv-02421 (C.D. Cal.).
Qatar’s modus operandi appears to be to select groups of emails on topics intended to
generate negative publicity about Mr. Broidy. And to repeat the cycle with as many news outlets
and stories as it can. Mr. Broidy is left with the Hobson’s choice of releasing more of his private
emails to provide the context needed to discredit the story or to allow the smearing to continue.
What concerns us here is that the press has allowed itself to be complicit in this
campaign. The hacking campaign here is directed not at another government, but at a private
American citizen – all in response to his own exercise of his First Amendment rights to highlight
an alleged U.S. ally’s support for global terrorist organizations. That should be cause for alarm
for ProPublica and WNYC which have both, in the last two years, doggedly sought to uncover
foreign interference in the U.S. political process.
Instead, you are going to air another story based on Qatar’s hacked emails. We would
respectfully suggest that ProPublica and WNYC have reason to doubt the veracity of its sources
in these circumstances. And more importantly, both organizations should question whether they
are being used as an instrument of an illegal foreign conspiracy to influence U.S. policy by
discrediting a significant critic of Qatar.
We are quite familiar with the news media’s favorite defense in these circumstances, the
Supreme Court’s decision in Bartnicki v. Vopper. That case, however, involved a single leaked
tape of an intercepted phone conversation. The radio station that replayed the tape had no
contact with the unknown person who surreptitiously taped the conversation. Indeed, the media
organization “never learned the identity of the person or persons who made the interception,”
one of the facts that the Court emphasized in distinguishing prior cases. The circumstances here,
by contrast, suggests multiple leaks of carefully curated hacked materials (with undoubtedly
more coming) and repeated contact between individuals working directly with the hackers and
reporters. The emails that you ask about involve just such scenarios—direct contact between the
hackers and reporters from the many news outlets that have printed the stories. All orchestrated

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by—and in service of—a foreign power. We do not know how ProPublica came into possession
of these emails here, but urge that you exercise caution in light of the hacker’s known practices.
While Bartnicki is often relied upon by media organizations for the broad proposition that
the media has some sort of immunity to publish illegally obtained materials, two of the
concurring Justices wrote separately to emphasize that the decision “does not imply a
significantly broader constitutional immunity for the media.” The First Amendment protection is
not absolute; and indeed, in light of the very different facts here, we doubt that a future Supreme
Court would find that Bartnicki was controlling.
Even apart from the question of how you are enabling Qatar to effectively use illegally
obtained materials to achieve its precise objectives, the greater question here is whether
ProPublica and WNYC are comfortable being used so readily by a foreign power. The
Washington Post’s David Ignatius discussed the hack of Mr. Broidy’s email in his May 31, 2018
column, “The Fog of Lies is Working.” He noted the “growing use of covert manipulation by
other nations (and private parties) to shape opinion.” Journalists, he argued, “at times,
unintentionally provide platforms for the manipulators—because we are often passive recipients
of documents that may be leaked, hacked or stolen. Our usual position is that we don’t care
where the material comes from, so long as it’s true and important to readers and viewers.” But
as he concluded, whether legally protected or not, there is a much greater moral question in play.
Journalists “must do better at telling our audience how information comes to us and what hidden
agendas our sources may have. Otherwise, we risk letting the manipulators use us, and in the
process, we damage our credibility.”
Legalities aside, that seems to be a key problem here. For months, Mr. Broidy has been
knocking down often inaccurate stories carefully placed by Qatar and its associates with media
naturally skeptical of a Republican with close ties to President Trump. And while many
blatantly false stories have been stopped, the media, has often dutifully complied, reporting the
stories that do significant harm to a prominent public critic of Qatar. At some point, you simply
have to ask yourself when you will stop being used to shape public opinion to the liking of a
foreign power. If you allow this campaign to continue, we can all expect private citizens
witnessing this spectacle to avoid expression of views hostile to wealthy foreign states.
Please understand, too, that Mr. Broidy will take whatever steps are necessary to prevent
harm to his reputation through the reporting of false facts. We reserve all rights and remedies.
Thank you for your time.
Sincerely yours,

Filberto Agusti