The Crimes with which NSD Envisions Charging Those Attacking Elections

The Senate Judiciary Committee had a hearing on how to protect our elections today. Among others, Deputy Assistant Attorney General Adam Hickey from DOJ’s National Security Division testified. He gave a list of some of the crimes he thought might be used to charge people who tampered with elections.

Foreign influence operations, though not always illegal, can implicate several U.S. Federal criminal statutes, including (but not limited to) 18 U.S.C. § 371 (conspiracy to defraud the United States); 18 U.S.C. § 951 (acting in the United States as an agent of a foreign government without prior notification to the Attorney General); 18 U.S.C. § 1001 (false statements); 18 U.S.C. § 1028A (aggravated identity theft); 18 U.S.C. § 1030 (computer fraud and abuse); 18 U.S.C. §§ 1343, 1344 (wire fraud and bank fraud); 18 U.S.C. § 1519 (destruction of evidence); 18 U.S.C. § 1546 (visa fraud); 22 U.S.C. § 618 (Foreign Agents Registration Act); and 52 U.S.C. §§ 30109, 30121 (soliciting or making foreign contributions to influence Federal elections, or donations to influence State or local elections).

In their testimony, Ken Wainstein (someone with extensive experience of national security prosecutions, but less apparent focus on the available evidence in this investigation) and Ryan Goodman (who doesn’t have the prosecutorial experience of Wainstein, but who is familiar with the public facts about the investigation) also list what crimes they think will get charged.

I find a comparison of what each raised, along with what has already been charged, to be instructive. I believe that comparison looks like this:

I’m interested, in part, because Hickey, who likely has at least a sense of the Mueller investigation (if not personal involvement), sees the case somewhat differently than two differently expert lawyers. Two charges — agent of a foreign power (basically, being a foreign spy in the US not working under official cover) and CFAA (hacking) seem obvious to both National Security Division prosecutors, but have not yet been publicly charged. Illegal foreign contributions seems obvious to those paying close attention, but also has not been charged. We might expect to see all three charges before we’re done.

Neither Wainstein nor Goodman mentioned false statements, but of course that’s what we’ve seen charged most often so far.

Then there are the two crimes Hickey mentions that the others don’t, but that have not yet been charged (both have been alleged as overt acts in the Internet Research Agency indictment): Visa fraud (alleged against the trolls who came to the US to reconnoiter in 2014) and destruction of evidence (again, alleged against IRA employees destroying evidence after Facebook’s role was discovered). Mueller also described George Papadopoulos destroying evidencec when he deleted his Facebook account, but like the Russian trolls, he didn’t get charged for it. Visa fraud, in particular, is something that multiple figures might be accused of — Alexander Torshin and others reaching out via NRA, Natalia Veselnitskaya, and even Brits who worked illegally during the election for Cambridge Analytica.

I confess I’m most interested in Hickey’s mention of destruction of evidence, though. That’s true, in part, because SDNY seems to think Michael Cohen might destroy evidence.

Hope Hicks, too, reportedly thought about hiding evidence from authorities. Then there’s the report that Mueller is checking encrypted messaging apps as people turn in phones when they arrive for interviews.

Huckey seems to think some of the people being investigated — beyond Papadopoulos and IRA troll Viktorovna Kaverzina — may have been destroying evidence.

I wonder if he has reason to suspect that.

14 replies
  1. orionATL says:

    it’s a year and a half since the russians tampered with the november 2016 elections and a congressional committe is getting around to public hearings and discussion on criminal (only, i guess) sanctions against future perpetrators. this is progress – congressional style – i suppose.

    it may not be high (or anywhere) on anyone else’s list, but i will tell you what i would like to see – a very stringent law requiring ALL agents (american or other nationality) who are serving a foreign government, corporation, or other organizational entity, e. g., politics party, in any capacity to register as agents of that entity. a part of this law would require that that list of agents be widely available publicly in the u. s. and updated frequently. the concern and the thought behind this has to do not with future election tampering, but with the need to prevent hiding paid or ideological allegiance from and misinforming the american public and its leaders. it is not acceptable in my view for glennsimpson&co manafortgates&co or vinweber&co or skaddenarps&co to collect hundreds of millions of easy foreign dollars paid willingly by billionaires to whom so much cash is nothing in order to foist a deliberate deception (rationalized as “just another way of looking at things”) on the the american citizenry and its leaders.

    this is but part of a need to set legal standards to lower the current high extentbof public lying. corporate public lying figures strongly in this concern of mine, as does lobbying, which includes but is not limited to corporate public lying, but for now i’ll stop with matters involving foreign entities. as far as “setting legal standards” goes, think of this phrase “by law and hence by custom” which i like a lot. it means that you may need to change an old, dysfunctional, damaging behavior by a law, butbin time that behaviorcwill be internalized and part of acceptable and expected social behavior.

    • orionATL says:

      “as far as “setting legal standards” goes, think of this phrase “by law and hence by custom” which i like a lot. it means that you may need to change an old, dysfunctional, damaging behavior by a law, but in time that behavior will be internalized and [become] part of acceptable and expected social behavior.”

      the idea here is that a reform effort does not have to become, and should not become, a fanatical undertaking of the sort the american religous rightwing have undertaken concerning many aspects of citizens’ sexual behaviors.

      persistent, informative education, using especially examples from our history, will serve far better than revolutionary zealotry and excess.

      but first the old rules must be changed – thence by custom.

  2. tjallen says:

    We know that some information behind various charges has not been made public to protect other ongoing investigations. I was going to ask whether any of Mueller’s prosecutors was an expert on parallel construction; but these days, probably every prosecutor is. Is my impression correct, that these days a federal prosecutor could subpoena and read lots of information which the government would not want the sources and methods made public? This reminds me of prosecuting a spy, where one might forgo prosecution to avoid disclosing spycraft, or where the prosecution is hampered or even compromised by the need to keep information sources secret.

  3. Trip says:

    From Marcy:
    emptywheel‏ @emptywheel
    emptywheel Retweeted ABC News
    Legal representation update: Paul Manafort’s lawyers have gotten lawyers. The President’s personal lawyer has no lawyers. And the President is making do with Emmet Flood and a bunch of otherwise totally inadequate lawyers.
    Former Trump lawyer Michael Cohen likely to cooperate as his attorneys leave case, sources say

    As attorneys for Michael Cohen rush to meet Judge Kimba Wood’s Friday deadline to complete a privilege review of over 3.7 million documents seized in the April 9 raids of Cohen’s New York properties and law office, a source representing this matter has disclosed to ABC News that the law firm handling the case for Cohen is not expected to represent him going forward.
    To date, Cohen has been represented by Stephen Ryan and Todd Harrison of the Washington and New York firm, McDermott, Will & Emery LLP.
    No replacement counsel has been identified as of this time.
    Cohen, now with no legal representation, is likely to cooperate with federal prosecutors in New York, sources said. This development, which is believed to be imminent, will likely hit the White House, family members, staffers and counsels hard.

    • orionATL says:

      lots of fussing about attorney-client priviledge. lots of delaying tactics using that line of argument. then?

      then sudden, total collapse. total!

      jesus! what was it those d. c. lawyer guys read in “the cohen papers”?

      • Trip says:

        Dunno. Marcy mentioned the lack of finances on Cohen’s end as motivation to split. Maybe he just has no case.

    • Bob Conyers says:

      I will be glad to see Cohen cooperating, but I will believe it when I see it. I want to know someone else isn’t swooping in at the last second to represent him and keep up the fight.

      If he does start cooperating, I expect we’ll see a billion bad takes on what this means, which will be the result of the major outlets refusing to commit dedicated resources specifically to the legal analysis of this case.

      • pseudonymous in nc says:

        The way that the press describes Cohen’s potential cooperation as a bad thing for the White House without explicitly explaining why — that the Family Business is organised crime — is quite something.

      • Trip says:

        You are correct:

        southpaw‏ @nycsouthpaw
        In a much more carefully reported story than ABC’s, WSJ doesn’t venture a prediction about whether Cohen will cooperate—says he hasn’t decided yet.

        Mr. Cohen doesn’t yet have a replacement law firm but is searching for a federal criminal lawyer in New York, people familiar with the matter said. Mr. Cohen wants to hire a lawyer with close ties to the Manhattan U.S. attorney’s office, the people said.
        Mr. Cohen hasn’t yet decided whether he will cooperate with prosecutors in the case, according to one of those people. He hasn’t been charged with any crime.

    • earlofhuntingdon says:

      Cohen raised several million when he recently sold two homes.  He has the cash to pay his lawyers, even if he uses a pile of that to pay his current bunch.  He might run low, without external support, if he has to come up with a few million to make bail.

      It’s possible he’s not cooperating with his lawyers or is making them uncomfortable about how much truth he’s telling them.  If he were to keep blindly backing Trump, his lawyers might feel there’s nothing they can do for him to minimize his jeopardy.

      On the other hand, if his lawyers are in the pro-Trump camp and feel it’s essential for them not to oppose Trump or to stay in a joint cooperation agreement, Cohen flipping would be against their interests and they would have to resign.

      All in, I would say this is not about money, but about loyalties.

  4. Willis Warren says:

    Wire Fraud has a ten year Statute of Limitations, so I predict we’re going to see some of that being a factor in Cohen’s flip. This also gives about five more years of pre Presidency exposure to 45

  5. earlofhuntingdon says:

    The Republican talking point that being intentionally cruel in separating families at the border is about the rule of law is precious, given this administration’s robust trashing of the rule of law and fair process at every opportunity.

    It is not about discouraging immigrants from attempting to come here.  Any condition in America is better than the dangerous conditions that drive these immigrants to our shores.  They will keep coming rather than face domestic, gang and government-backed violence and routine death. That they survive the journey, family intact, when so many others die or give up along the way, heightens their agony at being separated by the American government on arrival and declared criminals and smugglers of children for working hard to keep their families whole.

    Being cruel is the point, especially to the most vulnerable and least deserving of that cruelty.  It is straight out of the CIA insurrectionists’ textbook, ironically most often put into practice in Latin America.

    Here, it is demonstrating to Trump’s base that they are for them [sic] and against little brown foreigners, notwithstanding that immigrants, especially undocumented ones, are routinely among the most peaceful, productive, law abiding, and tax paying people in America.

    The better angels of our nature be damned, say Republicans.  They are addicted to fire and brimstone.  They mistake God for her wrath.

    • earlofhuntingdon says:

      Coincidentally, sadism, along with narcissism, paranoia, and being anti-social are the hallmarks of malignant narcissism. Mr. Trump expresses all four, in spades.

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