Mueller Report and the Hacks

The Mueller Report on the Troll Farm told us little that we did not know, and much that was blacked out.  Much of the report on the hacks is also blacked out.  Some of it involves an ongoing investigation and will presumably come out later.  Other parts involve very legitimately classified investigation techniques and will properly stay hidden.  It describes some details of that hack that we already knew from the indictment, some additional details about how the information was given to Wikileaks, and some really shocking material on how the Trump Campaign reacted to all that that should have been set forth in the Executive Summary.  Reading only the Executive Summary, you would miss some very important information.

The Report describes the hack of the Democratic National Committee (DNC), the Democratic Congressional Central Committee (DCCC) and some members of the Clinton campaign, including campaign manager John Podesta.  These accounts do not add much to what we knew from the previous indictments, and have sections blacked out as revealing investigative techniques.  It also references hacks on state boards of elections, Secretaries of State, and tech companies that supplied election software.*  This section is quite technical. The initial breach appears to have happened on April 12, 2016.  Russian Military Intelligence began planning release of the hacked materials a mere week later, on April 19, 2016 and started setting up the website DCLeaks.  The first release to DCLeaks was in "June, 2016."  The Report does not say whether this was before or after the hacks were announced on June 14, 2016.  The hackers gave some reporters "early access" to some leaked materials, but all the dates given by the Report were after June 14.  On June 15, 2016, Russian Military Intelligence created the "Guccifer" persona online, claiming to be a loan Romanian hacker and proving its bona fides by releasing hacked documents.  It did not take long to determine that Guccifer was a Russian front.**

All of this was revealed in a previous indictment, except for the hacks on state election infrastructure.  The Report does shed some new light on the transfer of materials to Wikileaks.  The prior indictment already revealed that Wikileaks asked "Guccifer" for the information, explaining that Wikileaks could deploy it more effectively, and that "Guccifer" electronically transferred the hacked information.  The Report adds that DCLeaks also contacted Wikileaks on the same day that the hack was revealed to propose they coordinate.***  The Report adds late communications as well, and says it appears that the Podesta e-mails were transferred to Wikileaks on September 19, 2016, although the investigators were unable to determine how.  It also makes clear that Assange was lying when he implied that Wikileaks got its information from murdered DNC staffer Seth Rich.  In fact, Wikileaks continued to receive hacked materials well after Rich was murdered.

Many observers noticed at the time of the earlier indictment that it specifically commented that the Russians first targeted Hillary Clinton's personal office on July 27, 2016, which was the same day Trump invited the Russians to reveal Hillary's missing 33,000 State Department e-mails.  The indictment never so much as suggested that the events were connected.  The Report is bolder, noting that the attempts to hack Clinton's personal office began five hours after Trump's remarks.  The attempt was not successful.  The report also discusses the Trump Campaign's communications with Wikileaks, but most of that is blacked out as affecting an ongoing matter.  That ongoing matter is almost certainly the Roger Stone prosecution.  One part that does get through is that Trump discussed planning his campaign strategy around Wikileaks releases, and another that the releases of the Podesta e-mails appear to have been timed to distract from the Access Hollywood tape, although it does appear to refute Jerome Corsi's claims that he knew about the Access Hollywood tape in advance and persuaded Wikileaks to time its release.

The Report also reveals that Donald Trump, Jr. was in contact with Wikileaks, that it steered him to valuable links, and that it gave him the password to an anti-Trump site that was about to launch.  I believe this had been previously reported.

But the most alarming part of this section is about the Trump Campaign's attempts to get Hillary Clinton's 30,000 missing e-mails.  (I don't understand why that is treated as part of the section on the Russian hacks rather that the Trump Campaign's Russian contacts).  The Report assures us that there was no sign of coordination between the Trump Campaign and Russia, but this section (pages 61-65) shows that the outreach was not entirely on the Russian side.

It was common knowledge well before the hacks were known that Hillary Clinton had sent State Department e-mails on a private server, making them vulnerable to hack by hostile powers, and also that she deleted some 33,000 of them as "personal."****  Team Trump appears to have been firmly convinced both that Russia did hack the server, and that the missing emails contained something very incriminating.  Various members therefore set out to retrieve the missing e-mails, without scruple as to the source.

On July 27, 2016, Trump notoriously, and in a public speech, asked the Russians for Hillary Clinton's missing e-mails.  The Russians did not have the e-mails, but apparently took the request seriously and attempted to hack Hillary's personal office, perhaps in a vain search for the missing e-mails.

The Wall Street Journal had previously revealed that Peter Smith, a Republican donor who was not part of the campaign but had ties to the campaign, attempted to find the missing e-mails on the "dark web," with no concern whether he was obtaining them from Russian cut-outs.  The account also made clear that Smith's contact with the Trump Campaign was Michael Flynn.  Flynn apparently shed a good deal more light on what happened.  Trump apparently made this demand repeatedly of Flynn, so Flynn was acting directly at Trump's behest.  Besides Peter Smith, Flynn apparently delegated the job to Barbara Ledeen, a Senate staffer and wife of the pro-Fascist historian and notorious warmonger Michael Ledeen. Barbara Ledeen advocated both searching open sources and contacting (unnamed) intelligence agencies. She believed that if the "providence" (provenance) of even one recovered e-mail was "a foreign service," it would be catastrophic for the Clinton campaign.  I think this means that if Hillary communicated with a foreign government and then deleted the e-mail it would look like something sinister.  (To the best of my knowledge, although some recovered e-mails were business, they were only with US colleagues). 

Peter Smith and Barbara Ledeen appear to have cruised the "dark web" searching for the missing e-mails, bringing many promises of success and false rumors, but getting nowhere because the missing e-mails were not, in fact, there.  Whether the two of them were con artists or were duped by con artists (or both, of course), is not clear.  What is most significant is that their work was condoned and indirectly ordered by Trump himself, acting through Flynn.  (No wonder Flynn's sentencing judge accused him of selling out his country!)

Smith cannot be criminally charged because he is dead.  Mueller appears to have decided not to bring charged against Barbara Ledeen, although the reasons for the decision are not given.

Is this a crime?  I am not a criminal lawyer, and it has been a while since I took even an elementary criminal law class, but this looks a lot like an inchoate crime, a crime that was prepared but not completed.  There are three types of inchoate crime -- solicitation, conspiracy, and attempt.  Attempt requires only one person.  Solicitation requires at least out reach to a second person.  And conspiracy requires an agreement to commit a crime between at least two people.  Some sort of action in furtherance of the crime is required, but the crime is need not be completed. Less action in furtherance is required for a conspiracy than a lone-wolf attempt.

To put this in more concrete terms, consider an unsuccessful plan to rob the Corner Convenience Store.  Suppose A asks to borrow B's gun to rob the Corner Convenience Store.  B agrees to lend the gun and drive the get-away car.  They drive down together and A takes the gun and goes in.  He then looks around, sees the security guard and the surveillance camera and decides this might not be such a good idea and goes back without any attempt to rob.  This would be sufficient to rate as a conspiracy, although proving it could be quite difficult.  If A takes his own gun and goes to the Corner Convenience Store to rob it but then changes his mind, that would probably not be sufficient to charge attempt.  If A pulls the gun, demands that the clerk empty the cash register, and then panics and runs when the clerk sets off an alarm, that would be an attempt.

The point here is that we don't want to criminalize evil thoughts, or even big talk, but neither do we want to require a crime to be completed before we can do anything.  Hence the need for actions in furtherance.  But we do consider more than one person combining to commit a crime to be particularly dangerous (what if what one person sees as so much hot air the other take seriously?).

So here we have two people cruising the dark web, looking to buy stolen e-mails from persons unknown but definitely not honest.  How is that not at least a criminal attempt.  And since they were acting at the behest of another party, how is this not a conspiracy?  An unsuccessful conspiracy is still a conspiracy, after all.

I will say here that Benjamin Wittes of Lawfare, who is certainly more knowledgeable than I am, disagrees, "It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers."  In other words, Wittes sees this as less equivalent to Smith and Ledeen going to steal the cash from the drawer at the Corner Convenience Store than to Smith and Ledeen going to the Corner Convenience Store to steal the Maltese Falcon.  No matter how often the cased the joint, poked around and tried to find the hiding place, they would never find the Maltese Falcon because it wasn't there.  Is it a criminal conspiracy to try to steal the Maltese Falcon from the Corner Convenience Store?  I must admit to not knowing.  But it does seem to me that if some con man at the Corner Convenience Store thinks that a fool and his money are soon parted, claims that the Maltese Falcon is there, and offers to steal it and sell it to you, some sort of crime is being committed.

I will also say that Watergate analogies apply here, although in reverse.  In the case of Watergate, there is no doubt that the Nixon Campaign really did commit a crime.  It broke into the Democratic National Headquarters, wiretapped a phone, and attempted to steal documents.  Nixon did not order this crime and had no advance knowledge of it.  Here, on the other hand, the Trump Campaign had no role whatever in the crime (i.e., the hacking).  However, Trump himself ordered his subordinates to profit from the crime.  It just so happened that the crime Trump attempted to profit from did not occur.  Again Wittes:

The idea that the missing 30,000 emails had been retrieved was never more than conjecture, after all. The idea that they would be easily retrievable from the “dark web” was a kind of fantasy. In other words, even as a real hacking operation was going on, Trump personally, his campaign, and his campaign followers were actively attempting to collude with a fake hacking operation that wasn't going on.

It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers. But it’s morally little different from being spoon-fed information by Russian intelligence. The Trump campaign was seeking exactly the spoon-feeding it was accused of taking; it just couldn’t manage to find the right spoon, and it kept missing when it tried to put any spoons in its mouth.

So, plenty of criminal intent there, but not a successfully executed crime, or apparently even enough to charge an inchoate crime.  Is criminal intent and failed attempt at a criminal conspiracy in impeachable offense?  I don't know, but it's more than enough for a primary challenge.

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*The Report also gives some idea of the scale of the hack, compromising some 29 DCCC computers and over 30 DNC computers. Asking why the DNC did not turn its server over to the FBI is effectively asking why it did not gut its operations. 
**Both the indictment and the report authenticate this by showing that the Russian hackers did google searches on various English words and phrases which they then used in Guccifer.  I still don't quite understand the significance of this.
***Julian Assange of Wikileaks had decided to back the Republican candidate well before anyone knew that Trump would be the Republican candidate.  Assange believes that if a Republican won, the Democrats would reign him in, but that no one would reign in a Democrat.
****About half those deleted e-mails were eventually recovered by the FBI.  Hillary deleted by subject heading, rather than by content, and it turned out that a few of the deleted e-mails were official.  Nothing very sensational appeared in any of them, though.