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.
The Conspirators, posing as Guccifer 2.0, also communicated with U.S. persons about the release of stolen documents. On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasure to me.” On or about September 9, 2016, the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidentialFrom Lawfare:
campaign.” The person responded, “[p]retty standard.”
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?