Lawyer about AfD leak: “We haven’t had this inside view before”

Attorney Jun, what have you been able to find so far in the data from the AfD leak? Could it breathe new life into the debate about a ban?

According to what editorial teams have checked so far, there is material in the data that has not been legally assessed. I have the impression that our previous assessments need to be rethought. If the data is authentic, it could be a game changer. Maybe these 280 GB contain the missing piece of the puzzle to the AfD ban.

For example, the alleged sale of swastika flags and drugs at an AfD information stand in Bottrop?

It's not necessarily about new cases. We never lacked the material for anti-constitutional efforts. What we've been missing all along is attribution; proof that these were known to the party leadership or party organs and yet they did not intervene. And when we now see that these cases were already before the arbitral tribunal, it is clear that the party knew about them. What matters is how she reacted. Anyone who excludes distances themselves. Whoever keeps people or gives them office again is tolerating, and this toleration is attributed to the entire party.

Born in 1974, is a lawyer and specialist in IT law in Würzburg. He became known as a lawyer against hate on the Internet: He filed criminal charges against Facebook managers and obtained preliminary injunctions against X/Twitter. As “Lawyer Jun” he is active on social networks and explains legal questions to a large audience. In September he was an expert in the Thuringian state parliament's hearing on the application to initiate an AfD ban procedure; he publicly supports such a procedure.

The case of Matthias Helferich, a member of the Bundestag, is exciting: the Federal Arbitration Court overturned his exclusion, only imposed a ban on holding office for six months and rejected the interpretation of the State Arbitration Court as “interpretations of the political opponent”. It was precisely this inside view that the Cologne Administrative Court was recently missing. It attributed statements made by the party leadership, but could not determine that they shaped the party.

More and more people are now delving deeper into the data: scientists, journalists and others. What should they keep an eye out for? What is really tangible?

We are looking for two things: The first is attribution, i.e. proof that the party was aware of certain facts. An email that only went to the AfD is not enough; it must also have been processed within the party. But it would be even stronger if party organs dealt with the content of the issues. That's the first thing.

Secondly, it's about proceeding in a planned manner. The CDU and CSU interior ministers in particular often express concerns about whether aggressive, combative behavior is present. This formula comes from the KPD ruling of 1956. But the Federal Constitutional Court expressly does not require violence or criminal offenses. Since 2017, however, it has required a planned approach, a so-called qualified preparatory action. And if, for example, a PowerPoint presentation appeared for a four-step process, that would be conducive to a ban. Until now, planning could only be derived from the communication behavior of AfD elected officials. We have seen that they make a certain shift in what can be said, for example that they coin certain terms. This could be a coincidence, but it could also have been planned.

Until now you have only ever seen the outer facade, now is there an opportunity to take a look behind it?

Exactly. The most recently presented report by the Society for Civil Rights, as well as reports by the Office for the Protection of the Constitution, were largely based on the external behavior of the party. However, we are now seeing the inside view to this extent for the first time. And this inside view may be highly relevant in terms of attribution and planning. The Office for the Protection of the Constitution has intelligence resources, but it did not present anything of the sort in the urgent proceedings before the Cologne Administrative Court. The court expressly missed this. Material that was created without informants would actually have an advantage in a ban procedure if it can be used: it is free of the state.

And are hacked emails even good in court?

There is no automatic ban on utilization. In 2010, the Federal Constitutional Court decided in the tax CD case that data illegally obtained by private individuals can be suspected. Only the core area of ​​private life is absolutely protected. In a ban procedure, Karlsruhe would have to carry out this assessment itself; there is still no case law for this. Practically more important is the indication of where to look: Anyone who knows that an arbitration tribunal has decided on a case can name witnesses and request the files. Then the evidence comes into the proceedings in an orderly manner.

Then we still have to look into the crystal ball, Mr. Jun: Is the AfD ban coming? At least an attempt to start the procedure and thus initiate the examination?

I believe that the only reason why the Bundestag, Bundesrat or Federal Government do not apply for the party ban procedure under Article 21 of the Basic Law, or alternatively exclusion from state funding, is political considerations. Despite the clear evidence that unconstitutionality would most likely be proven, turning a blind eye to this and giving this party all the privileges of the Basic Law is politically irresponsible.

Why do you think this hesitation is a problem?

The Basic Law stipulates that a party must be treated legally like any other party until the Federal Constitutional Court has determined that it is unconstitutional. The state can observe them and call them unconstitutional. Legally he is not allowed to hinder them. A city has to give it the hall like any other party, that was the case in Essen in 2024. No one can argue against her anti-constitutional stance, even if it is obvious.

This party privilege is balanced by the possibility of checking it. If politics intervenes in this balance, if they leave the possibility of the party ban procedure provided for in the Basic Law off the table for political reasons, it endangers democracy. The mothers and fathers of the Basic Law naturally assumed that the review would at least be tackled. If it turns out later that this procedure would have worked, but we simply didn't try it because we simply didn't have the courage or even intentionally thwarted it, we will bear political guilt.

I now receive requests for lectures and information evenings from the Greens and the SPD and now also from the Union. I make phone calls to CSU politicians. At this level of the party, people are seriously considering the issue. The people in the Union who have been cautious so far are not AfD fans. It's just a little difficult for them to abandon the opinions they've held for so long. It was similar with the SPD. But I believe that the Union's voters are now faster than their elected representatives and, above all, than their ministers. According to a poll by pollytix on behalf of Campact in September, two thirds of Union supporters are in favor of considering a ban.

There is information in the data that is worth examining closely. Now it's important to keep calm. To see what new things emerge, to be open to new assessments. You will see a lot of material of a known quality. You will see racist attacks. We must not get used to these racist attacks or fantasies of annihilation towards political opponents. Just because we see it all the time doesn't make it constitutional. This is the strategy that we must not fall for: the window of what can be said continues to shift.