Sorry, Fox News: Legal Experts Say Trump Collusion With Russia
Could Be a Crime
Dan Friedman
Wednesday, June 28, 2017
Mother Jones
In recent weeks, President Donald Trump’s defenders have been
pushing a curious new line: Even if Trump and his presidential campaign
colluded with Russia’s secret operation to subvert the 2016 campaign, that
would not be illegal. Fox News senior political analyst Brit Hume made this
argument during a panel Sunday, saying, “Collusion, while it obviously would be
alarming and highly inappropriate for the Trump campaign…it’s not a crime.” He
added, “Can anyone identify the crime?”
Well, yes, somebody can. Ten lawyers queried, including academics,
former prosecutors, and defense attorneys familiar with federal election and
hacking laws, cite more than a dozen federal statutes that prosecutors could
use to charge someone who collaborated with Russian intelligence to influence
the 2016 election.
“There is a whole plethora of areas of potential criminal
liability,” says Tor Ekeland, a defense attorney who has represented clients in
high-profile hacking cases in federal and New York courts. “To say that there
is none is just willful ignorance in the service of propaganda.”
What charges special counsel Robert Mueller might eventually level
depends on specific circumstances and evidence collected. But laws against
abetting or conspiring to commit computer fraud or identity theft and against
soliciting campaign aid from foreign nationals offer two potential areas under
which prosecutors could seek indictments, the lawyers say. Prosecutors also
could use broader federal statutes related to honest services fraud, wire fraud
and conspiracy to bring charges against anyone who colluded, according to the
attorneys.
On Fox, Hume was not alone in questioning the criminality of
collusion. Host Gregg Jarrett wrote last month that Mueller “is tasked with
finding a crime that does not exist” because “colluding with Russia is not,
under America’s criminal codes, a crime.” Fox’s Geraldo Rivera and Sean Hannity
have made the more specific argument that a Trump campaign official would not
have broken the law by asking a Russian person to release hacked emails. “Is
that a crime, to say ‘release it?'” Hannity asked on his radio show Friday.
“F*** yeah, potentially,” responds Ekeland. He notes he has
defended clients prosecuted for actions comparable to those of the hypothetical
Trump aide. Hacking into someone’s email is a federal felony. Encouraging that
crime may constitute a conspiracy to violate federal identify theft and
computer fraud laws, Ekeland says. (On July 27, at a campaign press conference,
Trump essentially encouraged Russia to hack Hillary Clinton: “Russia: If you’re
listening, I hope you’re able to find the 30,000 emails that are missing.”)
Renato Mariotti, who prosecuted cybercrime and financial fraud
cases as an assistant US attorney in Chicago, says a person who encouraged the
release of emails stolen from an American could face prosecution for aiding and
abetting computer fraud.* “You have to know of the criminal activity and take
affirmative steps to help it succeed,” he says.
Attorneys also say that a person who colluded with hackers should
worry about being charged for wire fraud, a broad law that prohibits the use of
communications technology, including the internet, with the intent to commit
fraud. They also note that a colluder could face prosecution for violating
copyright, trade secrets, and even espionage laws.
An indication of the breadth of charges federal prosecutors can
level in hacking cases came in March in California. Prosecutors there charged
four men, including two members of Russia’s Federal Security Service, with a
high-profile penetration into 500 million Yahoo user accounts in 2014. The two
Russian officials, accused of supporting but not participating in the breach,
drew dozens of federal charges, including conspiracy to commit computer fraud,
conspiracy to commit access device fraud, conspiracy to steal trade secrets,
and conspiracy to commit wire fraud.
A law barring foreign nationals from providing assistance in US
elections could also put Trump aides in legal danger. That law, strengthened in
the wake of allegations that Bill Clinton’s 1996 reelection campaign benefited
from Chinese support, prohibits foreigners from providing “anything of value”
in connection with an election. Bob Bauer, who served as White House counsel
under former President Barack Obama, wrote in a June 2 analysis that Russian
actions aimed at helping elect Trump, including the hacking and release of
embarrassing emails from the Clinton campaign and the Democratic National
Committee, represent an overlooked illegal campaign donation. “The case is more
or less hiding in plain sight,” Bauer insisted.
Under this law, US campaign officials must provide “substantial
assistance” to a foreign person or entity helping their campaign in order to
face criminal liability. Secret contacts aimed at securing Russian help would
probably meet the standard. So might public statements like Trump’s invitation
for more Russian hacking and his repeated praise of WikiLeaks, the site that
disseminated the Democratic emails swiped by Russian intelligence. Bauer argued
that such statements alerted Russian officials that their efforts were welcome.
Those statements also made clear that Trump considered Russia’s assistance to
be “of value,” said Bauer.
The attorneys point out that Fox News pundits have underestimated
the power of federal prosecutors. They emphasize that federal prosecutors have
substantial latitude under broadly worded federal laws to generate charges.
“They’ll look at the evidence and say, ‘What statutes can we charge?’” said
Mariotti. “They’re going to be looking through the federal code.”
Hume is right that there is no law specifically prohibiting
“collusion.” But prosecutors can probably indict someone for conduct described
as collusion under a broad federal conspiracy statute, says Ekeland. The law
imposes a maximum five-year sentence on anyone who “conspires either to commit
any offense against the United States, or to defraud the United States.”
Prosecutors can charge a person who engages in “any act to effect the object of
the conspiracy.”
Conspiracy laws offer prosecutors a widely used tool and are often
faulted by civil liberties advocates because they allow prosecutors to indict
people for a role in crimes they did not personally execute. But plenty of
these laws do exist, and former prosecutors do not have to stretch their
imaginations to consider ways Mueller and his team can possibly apply them in
the Russia investigation.
“There are thousands of people in jail for colluding,” Ekeland
says. “It’s another word for conspiracy.”
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Source URL: https://portside.org/2017-06-30/sorry-fox-news-legal-experts-say-trump-collusion-russia-could-be-crime
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