Trump blaming U.S. for bad Russia relations; six takeaways from Mueller’s indictment; Russian bots, trolls test the waters, and more

Russia Indictment 2.0: What to make of Mueller’s hacking indictment (Autumn Brewington, Mikhaila Fogel, Susan Hennessey, Matthew Kahn, Katherine Kelley, Shannon Togawa Mercer, Matt Tait, Benjamin Wittes, Lawfare)
The indictment Friday morning of 12 Russian military intelligence officials in connection with the 2016 election hacks and the resulting distribution of purloined emails was not a total surprise. Observers of the Mueller investigation have been expecting it for a long time, particularly since the Feb. 16 indictment of 13 Russian individuals and three companies over the social media campaign conducted by the so-called Internet Research Agency.

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In response to the indictment, the White House released a statement saying,
As Deputy Attorney General Rod Rosenstein said today:

•  There is no allegation in this indictment that Americans knew that they were corresponding with Russians.
•  There is no allegation in this indictment that any American citizen committed a crime.
•  There is no allegation that the conspiracy changed the vote count or affected any election result.
Today’s charges include no allegations of knowing involvement by anyone on the campaign and no allegations that the alleged hacking affected the election result. This is consistent with what we have been saying all along.

Leave aside the obvious falsity of the White House’s assertion that the indictment is “consistent” with the president’s prior statements, which have repeatedly questioned Russia’s involvement in election interference. Leave aside also the question of why the White House’s response to an indictment on this subject made no mention, at all, of the unprecedented attack by a foreign adversary on foundational elements of U.S. democracy and instead merely defended the president’s campaign as not having knowingly participated in it.
The statement is largely accurate, as is the Rosenstein statement on which it draws. This indictment does not charge or allege specific criminal misconduct by any American. And it is careful—as was the indictment in February—not to sweep broadly in its claims about people on this side of the Atlantic. That said, the indictment does not in any sense foreclose the possibility of substantial, knowing and even criminal involvement by Americans. And it actually moves the ball forward on possible collusion, which would likely take the legal form of criminal conspiracy, in important respects.
First, while the indictment does not charge any American with specific criminal conduct, it does describe conduct by Americans that, depending on further factual development, raises potentially serious questions. The most striking example of this occurs in paragraph 43(a): “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.”
Soliciting stolen, hacked emails should be politically fatal to an aspiring—or possibly serving—member of Congress, particularly when the thief one petitions turns out to be an adversary foreign intelligence agency. It also raises questions about possible criminal liability for soliciting and receiving stolen information, at least to the extent that the government can prove that one knows the material is stolen. There is no indication that this American was involved with the Trump campaign. So to the extent that “collusion” is shorthand for collusion by individuals related to the Trump campaign, this incident many not meaningfully change the picture. The special counsel indictment announcement in February also named Americans unrelated to the Trump campaign as being dupes of the conspiracy, though those people were more clearly unwitting dupes.
Second, the indictment leaves open the possibility of conduct by Americans not described in this document. While the document does not allege any American who corresponded with these entities knew that they were part of the Russian conspiracy, it also does not say that they did not know or suspect these entities were part of a Russian operation. It leaves that question, about these actors and others, for another day. This document alleges that Americans—including at least one individual who was closely connected to the Trump campaign—had contact with the charged conspirators. Whether they did so with sufficient knowledge or criminal intent, and whether they took the necessary affirmative steps to create legal liability, is simply not addressed in this indictment. It clears no one, and it actually places publicly reported conduct in a more sinister light by clarifying that the individuals in question were, in fact, in contact with Russian conspirators, knowingly or otherwise.
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?

The Trump-Bolton misdirection on Russian extradition: Plenty of legal options exist to gain custody of Russian suspects
(Steven Arigg Koh, Just Security) On Sunday, President Donald Trump stated he “hadn’t thought of” pressing Vladimir Putin to extradite the dozen Russian nationals indicted earlier that week by Special Counsel Robert Mueller. When asked why not, National Security Adviser John Bolton gave a response that sounded legalistic: it would be “pretty silly” for President Trump to request the Russian fugitives’ extradition, he contended, because the United States lacks an extradition treaty with Russia and Russian law forbids extradition of its own nationals. Both should know better. Their comments suggest not that the Administration lacks legal options, but that it has no political will to seriously seek custody of the Russian fugitives. Trump and Bolton’s comments fail—perhaps deliberately—to acknowledge the myriad legal options typically available to the U.S. government in what I call “foreign affairs prosecutions,” or criminal cases in which the executive branch is engaging its prosecutorial power and foreign affairs power at the same time. Such cases have proliferated in recent years due to the rise of transnational crime, which has in turn triggered legal adaptations to U.S. criminal law and procedure to close impunity gaps. Examples include the cases of corrupt FIFA officials, Mexican drug lord Joaquin “El Chapo” Guzman Loera, and Edward Snowden.

With Trump talk of Crimea deal, will U.S. bulwark hold? (Viola Gienger, Just Security)
The prospect that President Donald Trump might seek a deal with Russian President Vladimir Putin that sells out Crimea highlights the vulnerability of the borders of Europe’s second-largest country, Ukraine, despite years of sanctions and international condemnation over Russia’s bold, but remarkably easy, land grab.

The Russians are saying they’ve already won at the Trump-Putin summit. And they’re right. (Brian Whitmore, Washington Post)
They’re already declaring victory in Moscow.

The mere fact that Kremlin leader Vladimir Putin will finally get his one-on-one meeting with President Trump in Helsinki on Monday is seen by the Russians as a validation of everything they have been up to in recent years.

The hacking. The election meddling. The troll farms. The export of corruption. The support for xenophobic, extremist and all manner of disruptive movements in the West. The bullying of neighbors. The poisoning of U.K. citizens with a nerve agent. The kidnapping of an Estonian law-enforcement officer. And, of course, the illegal annexation of Crimea and the invasion of eastern Ukraine.

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Moscow-based foreign affairs analyst Vladimir Frolov, one of the more astute observers of the Kremlin’s thinking, succinctly summed up the conventional wisdom in a recent column: “This one decision — turning the page — will be an important victory for Putin, who so far has not given an inch and who has patiently waited for the U.S. to begin to restore relations.”

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Andrei Bystritsky, chairman of the Valdai Discussion Club and a leading Kremlin surrogate, gleefully noted that the current world order is in crisis, citing the migration problem, divisions within the European Union and the widening transatlantic rift. Russia, he added, now occupies “a unique position in the world,” and constructing a stable order without it is impossible. Well, that’s one way of putting it.

A more accurate one would be that Putin has turned Russia into a global protection racket that is prepared to wreak havoc and chaos until he gets what he wants: a free hand in the former Soviet space and an exemption from the rules of international conduct.

The problem with Trump’s approach to Putin is that it assumes the Russian leader shares the West’s desire for stability in the international system. He does not. Rather, the Kremlin has persistently fanned the brush fires plaguing the post-Cold War world order.

Russia’s bombing campaign in Syria has exacerbated Europe’s migrant crisis. Its disinformation campaign and support for extremist parties have undermined European unity and transatlantic solidarity. Its encouragement of corruption has established networks of influence across the West and undermined faith in democratic institutions.

Given the Kremlin leader’s background, this should not be surprising. Putin cut his political teeth facilitating relations between the state and organized-crime groups when he was deputy mayor of St. Petersburg in the 1990s. Among other things, he helped the infamous Tambov group, a major crime syndicate, take over the city’s gaming and fuel distribution industries.

Putin has since expanded. He now runs the biggest mafia syndicate in the world: the Russian government. And he has applied the skills he mastered in the St. Petersburg underworld — things such as extortion, blackmail and confidence tricks — and applied them to international politics.

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Putin is most effective at playing the role of the international grifter. And his big con is getting his protection racket recognized as a “respectable business.”

The Kremlin views this summit as the beginning of the process. Small wonder Putin’s entourage regards the meeting with Trump as a huge victory.

Russian trolls reportedly made Twitter accounts for fake U.S. newspapers but shared real news stories (A. J. Dellinger, Gizmodo)
In addition to flooding social media with false news stories, propaganda-spreading bots, and all sorts of online chicanery during the 2016 US presidential campaign, Russian trolls also reportedly attempted to erode Americans’ trust in local news by posing as city newspapers.

According to NPR, operatives working for the Kremlin-linked troll farm known as the Internet Research Agency created at least 48 separate Twitter accounts that were designed to look like the local newspaper for a number of major US cities.

With help from the Alliance for Securing Democracy, NPR found that the account existed well before the 2016 election got into full swing. One account made up to look like the defunct Chicago Daily News, which was shuttered in 1978, was created in May 2014. By July 2016, the account had amassed more than 19,000 followers.

Russian bots, trolls test the waters (Tampa Bay Times)
The sponsors of the Russian “troll factory” that meddled in the 2016 U.S. presidential campaign have launched a new American website ahead of the U.S. midterm elections. A Russian oligarch has links to Maryland’s election services. Russian bots and trolls are deploying increasingly sophisticated, targeted tools, and a new indictment suggests the Kremlin itself was behind previous hacking efforts in support of Donald Trump. Many Americans are wondering: Is the Kremlin trying yet again to derail a U.S. election?