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The headlines are bursting with speculation about President Trump’s seemingly sudden firing of FBI Director James B. Comey. The administration’s rationale has shifted. Whether Comey was dismissed because the administration was unnerved by his dogged pursuit of the Russian hacking issue, because he mishandled the investigation of Hillary Clinton’s private email server, or because Trump disliked Comey’s recent testimony before the Senate Judiciary Committee, the timing of Comey’s firing – in the midst of the FBI’s investigation of Russian meddling in the recent national election – raises eyebrows and a few questions. This blog does not attempt to answer questions of judgment or politics, but will help shed a light on the various Russian investigation-related crimes Comey and the FBI may have been investigating.
Computer Hacking by the Russians
A declassified report from the Office of the Director of National Intelligence, which contains information collected by the CIA, FBI, and National Security Agency, confirms Russia’s efforts to influence the 2016 election, undermine the public faith in the U.S. democratic process and harm Hillary Clinton’s electability and potential presidency through cyber intrusions and hacks. The report reveals that the hacking was undertaken at the direction of Russian President Vladimir Putin by Russian government agencies in conjunction with state-funded media, third-party intermediaries, and paid social media users known as “trolls.”
Such hacking activities may be prosecuted under federal criminal statutes that criminalize the knowing access of a computer used in or affecting interstate or foreign commerce or communication without authorization or in excess of authorized access. An indictment filed by the Justice Department in the Northern District of California on February 28, 2017 against four Russian individuals provides an example. The indictment alleges that two Russian citizens acting on the orders of two officers of the Russian Federal Security Service hacked into Yahoo’s internal networks, compromised Yahoo user accounts, and used those accounts to pivot into accounts with other online services, including Google. More than half a billion accounts were accessed illegally.
Those defendants are charged with forty-seven counts, including violations of the Computer Fraud and Abuse Act, which was specifically enacted by Congress in 1986 to address computer hacking, economic espionage, theft, wire fraud, and identity theft, among others. The Yahoo case demonstrates the coordination between the Russian government and criminal hackers and the types of crimes that Comey may have been pursuing.
Crimes Arising from the Administration’s Relationship with Russia – Including Treason
In March 2017, Comey confirmed that the FBI was investigating the Russian government’s efforts to interfere in the election. He announced that the agency’s probe included examination of the nature of any links or coordination between the Russian government and the Trump campaign. Indeed, President Trump’s personal and business relationships with Russia and President Putin are widely known. If Trump or agents of his campaign either were working with Russian agents or officials or had knowledge of Russian interference with the 2016 elections, it is possible that they could be charged in connection with the hacking activity.
A more significant and troubling possibility is the potential of treason charges. Section 2381 of Title 18 of the United States Code provides that “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
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If Trump or his staffers directed Russian hacking activity, they conceivably could be charged with treason. In the alternative, if Trump or his staffers had knowledge of Russian’s felonious actions but deliberately concealed the same, they could be charged with the felony of misprision. The close relationship between Trump associates and Russian representatives is undisputed. In February of this year, Mike Flynn, an ardent Trump supporter who was named national-security advisor, resigned after it was revealed that he had conversations with Sergey Kislyak, the Russian ambassador to the United States, before Trump’s inauguration and the day after President Obama announced sanctions against Russia for its interference in the election.
Although Flynn later told Vice President Mike Pence that the topic of sanctions did not come up – a statement later repeated by the White House – FBI transcripts of recordings of those conversations tell a different story. Other Trump allies with connections to Russia include his son-in-law, Jared Kushner, who reportedly also met with Kislyak between Election Day and the inauguration, and Attorney General Jeff Sessions, who recused himself from the Russian inquiry after his contacts with Kislyak were revealed. The nature of these relationships naturally leads to questions regarding who on Trump’s team knew what about the Russian hacking and when did they know it.
Answers to these questions may lie in President Trump’s hands given his recently revealed penchant for taping conversations. Senators of both parties have called for the production of relevant tape recordings made by Trump while in office after he alluded to taped conversations with Comey. An examination of whether such recordings exist from the campaign and period of time after the election, but before he assumed the Presidency, also may be warranted. Given the recent flare up relating to Trump’s apparent impromptu sharing of national security secrets with Russian diplomats, Congressional interest in any such tapes likely will only increase.
Trump’s Taxes May be Fair Game
Another feasible avenue of investigation could involve probing financial links between Russia and Trump or his associates. President Trump’s tax returns, which he consistently has refused to produce, could shed some light on the nature and extent of his dealings with the Russian government and businesses and potentially point to violations of United States tax laws. Such links also could violate important campaign finance laws. Those laws prohibit foreign nationals from making any contributions or expenditures in connection with any election in the United States, or may implicate more serious crimes.
Recent media reports indicate that the Senate Intelligence Committee, which also is conducting an inquiry into Russian meddling, requested that the Treasury Department’s Financial Crimes Enforcement Network provide financial information on Trump and some of his associates believed to be relevant to their investigation. The Financial Crimes Enforcement Network is tasked with tracking money laundering and terrorism financing.
What Does the Future Hold?
We are in uncharted territory. A foreign power has engaged in what appears to be illegal activity to interfere with our nation’s democratic process. American intelligence agencies and congressional committees are investigating whether associates of the sitting President colluded with that foreign power. The head of the agency running such investigation was summarily terminated, leaving open a number of questions regarding the status of the investigation his agency was conducting and what crimes may be uncovered. The FBI’s and congressional committees’ continued pursuit of these issues in the days following Comey’s dismissal likely will make history.
From The Insider Blog: White Collar Defense & Securities Enforcement.