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Lawfare: Indictment does not in any sense foreclose possibility of criminal involvement by Americans
Very long, interesting analysis here -- the excerpt below is only a small part of it -- worth bookmarking and posting wherever anyone tries to use the WH line that today's indictment somehow clears Trump and other Americans:
https://www.lawfareblog.com/russia-indictment-20-what-make-muellers-hacking-indictment
The statement is largely accurate, as is the Rosenstein statement on which it draws. This indictment does not charge or allege specific criminal misconduct by any American. And it is careful—as was the indictment in February—not to sweep broadly in its claims about people on this side of the Atlantic. That said, the indictment does not in any sense foreclose the possibility of substantial, knowing and even criminal involvement by Americans. And it actually moves the ball forward on possible collusion, which would likely take the legal form of criminal conspiracy, in important respects.
First, while the indictment does not charge any American with specific criminal conduct, it does describe conduct by Americans that, depending on further factual development, raises potentially serious questions. The most striking example of this occurs in paragraph 43(a): “On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, received a request for stolen documents from a candidate for the U.S. Congress. The Conspirators responded using the Guccifer 2.0 persona and sent the candidate stolen documents related to the candidate’s opponent.”
Soliciting stolen, hacked emails should be politically fatal to an aspiring—or possibly serving—member of Congress, particularly when the thief one petitions turns out to be an adversary foreign intelligence agency. It also raises questions about possible criminal liability for soliciting and receiving stolen information, at least to the extent that the government can prove that one knows the material is stolen. There is no indication that this American was involved with the Trump campaign. So to the extent that “collusion” is shorthand for collusion by individuals related to the Trump campaign, this incident many not meaningfully change the picture. The special counsel indictment announcement in February also named Americans unrelated to the Trump campaign as being dupes of the conspiracy, though those people were more clearly unwitting dupes.
Second, the indictment leaves open the possibility of conduct by Americans not described in this document. While the document does not allege any American who corresponded with these entities knew that they were part of the Russian conspiracy, it also does not say that they did not know or suspect these entities were part of a Russian operation. It leaves that question, about these actors and others, for another day. This document alleges that Americans—including at least one individual who was closely connected to the Trump campaign—had contact with the charged conspirators. Whether they did so with sufficient knowledge or criminal intent, and whether they took the necessary affirmative steps to create legal liability, is simply not addressed in this indictment. It clears no one, and it actually places publicly reported conduct in a more sinister light by clarifying that the individuals in question were, in fact, in contact with Russian conspirators, knowingly or otherwise.
Finally, the factual allegations in this document significantly improve the possibility of criminal conspiracy charges involving Americans. Until this action, there was little indication in the public record that the hacking operation persisted beyond the date the documents were released. While there were questions about whether the Trump campaign participated in some way in coordinating the release of these documents, the presumption based on public evidence was that the hacking scheme—that is, the violation of the Computer Fraud and Abuse Act, which constituted the most obvious criminal offense—was complete. This left a bit of a puzzle for “collusion” purposes. If the crime was completed at the time the hacking and theft were done, what crime could constitute conspiracy? One year ago to the day, Helen Murillo and Susan Hennessey analyzed the possibility of conspiracy to violate the CFAA. At the time, they noted a stumbling block to the analysis even if individuals in the Trump campaign encouraged the release of documents or coordinated timing:
The Internet Research Agency indictment, in February, offered a potential legal solution to that puzzle.
This indictment, by contrast, offers a potential factual breakthrough. It tells us that the prior factual premise was wrong: the alleged conduct violating the CFAA continued to occur throughout the summer of 2016. That affects the earlier analysis in two ways. First, it makes clear that the Russians did intend to release the information at the time the hacking occured. Second, and perhaps more important, the indictment alleges that the criminal hacking conspiracy was ongoing at the time individuals in the Trump campaign were in contact with charged and uncharged Russian conspirators, raising the possibility of more straightforward aiding and abetting liability.
In other words, stay tuned. This indictment represents a tightening of the ring in the story of criminal prosecution for the 2016 election hacking. The government has now alleged that the social media manipulations by Russian actors constituted a criminal conspiracy. It has alleged as well that the hacking of Democratic Party and Clinton campaign emails were crimes conducted by officers of the Russian state. The question remains: Who, if anyone, helped?
First, while the indictment does not charge any American with specific criminal conduct, it does describe conduct by Americans that, depending on further factual development, raises potentially serious questions. The most striking example of this occurs in paragraph 43(a): “On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, received a request for stolen documents from a candidate for the U.S. Congress. The Conspirators responded using the Guccifer 2.0 persona and sent the candidate stolen documents related to the candidate’s opponent.”
Soliciting stolen, hacked emails should be politically fatal to an aspiring—or possibly serving—member of Congress, particularly when the thief one petitions turns out to be an adversary foreign intelligence agency. It also raises questions about possible criminal liability for soliciting and receiving stolen information, at least to the extent that the government can prove that one knows the material is stolen. There is no indication that this American was involved with the Trump campaign. So to the extent that “collusion” is shorthand for collusion by individuals related to the Trump campaign, this incident many not meaningfully change the picture. The special counsel indictment announcement in February also named Americans unrelated to the Trump campaign as being dupes of the conspiracy, though those people were more clearly unwitting dupes.
Second, the indictment leaves open the possibility of conduct by Americans not described in this document. While the document does not allege any American who corresponded with these entities knew that they were part of the Russian conspiracy, it also does not say that they did not know or suspect these entities were part of a Russian operation. It leaves that question, about these actors and others, for another day. This document alleges that Americans—including at least one individual who was closely connected to the Trump campaign—had contact with the charged conspirators. Whether they did so with sufficient knowledge or criminal intent, and whether they took the necessary affirmative steps to create legal liability, is simply not addressed in this indictment. It clears no one, and it actually places publicly reported conduct in a more sinister light by clarifying that the individuals in question were, in fact, in contact with Russian conspirators, knowingly or otherwise.
Finally, the factual allegations in this document significantly improve the possibility of criminal conspiracy charges involving Americans. Until this action, there was little indication in the public record that the hacking operation persisted beyond the date the documents were released. While there were questions about whether the Trump campaign participated in some way in coordinating the release of these documents, the presumption based on public evidence was that the hacking scheme—that is, the violation of the Computer Fraud and Abuse Act, which constituted the most obvious criminal offense—was complete. This left a bit of a puzzle for “collusion” purposes. If the crime was completed at the time the hacking and theft were done, what crime could constitute conspiracy? One year ago to the day, Helen Murillo and Susan Hennessey analyzed the possibility of conspiracy to violate the CFAA. At the time, they noted a stumbling block to the analysis even if individuals in the Trump campaign encouraged the release of documents or coordinated timing:
While the precedent isn’t entirely clear on the matter, it is possible prosecutors here would need to prove not just that a member of the Trump team was aware of the CFAA scheme when he or she took steps to support the tortious act or violation of another state or federal law, but also that the Russians had the intention of publishing the emails at the time they obtained the information in the first instance. It isn’t at all clear from the public record that the Russians initially obtained the emails for the purpose of publishing them. Indeed, there is some suspicion the original intrusion was just in furtherance or ordinary espionage and the plan to release the emails came later.
The Internet Research Agency indictment, in February, offered a potential legal solution to that puzzle.
This indictment, by contrast, offers a potential factual breakthrough. It tells us that the prior factual premise was wrong: the alleged conduct violating the CFAA continued to occur throughout the summer of 2016. That affects the earlier analysis in two ways. First, it makes clear that the Russians did intend to release the information at the time the hacking occured. Second, and perhaps more important, the indictment alleges that the criminal hacking conspiracy was ongoing at the time individuals in the Trump campaign were in contact with charged and uncharged Russian conspirators, raising the possibility of more straightforward aiding and abetting liability.
In other words, stay tuned. This indictment represents a tightening of the ring in the story of criminal prosecution for the 2016 election hacking. The government has now alleged that the social media manipulations by Russian actors constituted a criminal conspiracy. It has alleged as well that the hacking of Democratic Party and Clinton campaign emails were crimes conducted by officers of the Russian state. The question remains: Who, if anyone, helped?
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