Silly Indictments and Russia’s Crimes

The announcement by Special Counsel Robert Mueller of the indictment of 12 Russian GRU officers for hacking brought the usual cheers and jeers. That this was an affront to the United States isn’t, or at least shouldn’t be, controversial at all, any more than the Russians planting a spy in our State Department or military. That they hacked us is certainly a terrible thing from our perspective, but it does little to inform us as to why this is a crime.

After raising this question, following disclosure of the indictment, there were numerous responses that reminded me that people really have no grasp of criminal law, and that included lawyers who replied with some exceptionally dumb reactions.

This “crime” involved Russian military officers physically located in Russia hacking servers in the United States. So outrageous that they would interfere in our elections, even if we’ve been doing that to others for decades. But we’re us, so the Exceptionalism Exception applies and we’re only accountable for what we do to the extent we choose to be. But that’s an aside to the legal question of whether the elements of a crime exist.

There are two predominant questions raised by the indictment. The first arises from the fact that the “defendants” are Russian military officers. They act on behalf of their country, just as our military acts on behalf of ours. Was their intent to commit a crime or to do their duty on behalf of their nation? The mens rea of “intentional” was certainly beyond question, but intentionally what? There was intent to perform the acts involved in hacking, but it was not for a malevolent purpose from their perspective. It was for the Motherland. That’s what they are sworn to do, as are our military, CIA, NSA, et al.

The second question is in personam jurisdiction. There is a practical aspect to this, as in how we’re going to rummage through Moscow in search of GRU officers to arrest, but there is also a legal point that many miss. These Russians weren’t renting a studio in New Jersey from which to hack the DNC servers, but were happily going home to their dachas every night. That their actions would have been a crime if perpetrated on US soil doesn’t mean the critical element of jurisdiction gets overlooked. They weren’t here. They were there. There, the conduct wasn’t criminal no matter how we feel about it.

The hot take reaction is that the servers were here, which is important for the purpose of venue even if the location of the servers is largely fortuitous. After all, if the physical server had been located in Ireland, and the hacking perpetrated from New Jersey, would that prevent it from being a US crime because the server was overseas? And in reality, servers can be anywhere, and have no material connection to anything else in the digital age.

Some people tried to analogize the hacking to other crimes, often fixing on only one aspect of the fact pattern with the nexus argued in the negative. By doing so, the arguments simply ignored the problems presented in this peculiar indictment and proffered the philosophical “why not?” When it comes to crimes, the “why not” is that we still have elements required by our law even when our reach exceeds our grasp.

The unspoken, and ignored, aspect of jurisdiction is our jingoistic assumption of universal jurisdiction over all persons anywhere. Are people in Russia subject to our law? Are we subject to theirs? Bear in mind that Germany has no First Amendment and criminalizes a broad swathe of speech.

If we twit something, it ends up in Germany as well as New Jersey, and if it’s deemed a crime in Germany, should we be concerned that the Bundesnachrichtendienst will be knocking on our door with a warrant any day now? Or more realistically, if we take a lovely boat tour of the Rhine, will we be taken into custody? Just as we’re allowed to enact our own crimes, so too are other nations. Yet, we are subject to American law. Are we so blindly jingoistic as to believe that our law extends to the streets of Moscow?

It’s not that many Americans want desperately to find some external source to blame for the election of Donald Trump, since it obviously couldn’t be that Hillary Clinton didn’t win them over or Americans reject progressive ideology. And this fervor pushes many to want to believe that this is a crime, given how making the hacking a crime imputes malevolence to a foreign power interfering in our blessed democracy. It’s entirely different when our CIA did it in South America since we’ve got God on our side.

But we can still recognize that the Russians interfered in our elections, even if the significance of that interference with the outcome of the election will never be known and subject to argumentation and outrage, without trying to make it out as a crime or indulge in the fantasy of indicting Russian military officers for being good Russians rather than law-abiding Americans.

When all you have to grasp is straws, then strawman arguments are the best you can do. Russia interfered in our election, but that fact doesn’t make it an American crime or make Mueller’s indictment less silly.

 

39 comments on “Silly Indictments and Russia’s Crimes

  1. jack p

    ….So you propose to treat this as an open, formal attack by the Russian Federation upon the United States government? Just let me go get my tin helmet on first please. Been a while since the last war.

    Hacking a foreign computer when authorised and directed by your governments’ security agencies is not a crime in Russia. Doing it as a private citizen is. So is it a matter for US law enforcement, the state department, or the US army?

    1. SHG Post author

      You’re not a lawyer, as you’ve made overwhelmingly obvious. You’re not American. You’re kinda simplistic and, frankly, dumb. What makes you feel compelled to persist in commenting, Jack? Are you a glutton for punishment?

    2. Skink

      Look, even for a non-lawyer or a lazy thinker, criminal jurisdiction is real easy: does the government have authority to do what it intends and authority over the person it wants to do it to? There’s some technical stuff, but explaining it won’t help you.

      Now do you see why your writing seems like it came from a drunk 6 year-old? Much is condoned in this here Hotel, but we draw the line at drinkin’ with 6 year-olds. They puke far too often, and when they do, what comes out of their mouths is really icky.

      1. Fubar

        Easy questions get easy admissions,
        No more useful than strong admonitions.
        When they all come to naught
        At inducing a thought,
        Ask a hard question. Praise great ambitions!

  2. An unindicted coconspirator

    SHG,

    On the face of it, the timing of the release of the indictment is troubling. It could have remained sealed until after the summit. The President could have been briefed before he left for Finland, as he apparently was.

    Assume for a moment (a stretch perhaps) that President Trump has a good reason for talking with President Putin. Indirectly throwing shade at Trump immediately before his Finnish frolic comes periously close to attempting to obstruct the President’s primacy in foreign policy. That is, of course, unless Trump (the evil genius that he is) told Rod to release it.

    I have to go conspire with Joan now to interfere with the functioning of China. We’re going to hack the Walmart in Shenzen (across the bay from Hong Kong). A granddaughter is mad at the Shenzen Walmart over the absence of an old style Barbie with an elegant figure. The PRC is going to see fire and fury.

    All the best.

    RGK

    1. SHG Post author

      I leave the Machiavellian strategy to others, as it’s way over my pay grade, but may I suggest buying Barbie with free shipping off eBay will be easier on Joan than hacking the hordes at Walmart. It’s a Barbie world.

      1. Richard Kopf

        SHG,

        Again, you prove I am not worthy. All the best.

        RGK

        PS Barbie walked into a bar, and . . . Never mind.

  3. Mario Machado

    These 12 Russians have a patriotic duty to waive indictment, schedule a debriefing in Instanbul, and not show up.

  4. Jim Tyre

    The unspoken, and ignored, aspect of jurisdiction is our jingoistic assumption of universal jurisdiction over all persons anywhere.

    It becomes difficult to argue “our” jingoistic assumption when courts in France, Germany, Australia and elsewhere have issued rulings (in civil cases) that smell just as much of universal jurisdiction. The U.S. is hardly alone here.

    1. D-Poll

      Yep, I’ve often believed that we should match every low France, Germany, Australia, “and elsewhere” stoop to. I’ll see you in court tomorrow for denying the holocaust of hurt feelings on campus, of course.

  5. Maurice Ross

    They distributed the stolen emails into the United States. Importing contraband into the US is a crime. The indictments are hardly silly. Did you even read them?

    1. SHG Post author

      Law is hard. Jurisdiction is really hard. The Rule Against Perpetuities is hard too, but not that hard.

  6. Anonymous Coward

    It’s Mueller’s “do something” moment. Having failed to find enough evidence to indict any Americans and driven by the ruled by feelz impulses of the Left he made a grandstand play by indicting untouchable Russian bad guys so he could claim his laudatory hashtag.

    1. phv3773

      Another possibility is that Meuller was given the assignment of looking into Russian meddling with the election, and he has done that without being distracted by the baying of the woukd-be wolves on the left.

      1. Rigelsen

        If that was indeed Mueller’s assignment and aim, then why not label it a counterintelligence and foreign relations matter from the get-go? That’s usually what happens when one country’s clandestine operatives mess with the functioning of another. Instead, we have these pseudo prosecutorial processes and sham indictments that can never be tested in court. What’s the point of that if not distraction?

        1. Joseph

          But it WAS labeled a counterintelligence matter from the get-go. On March 2017, Comey testified, “I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election.” When Mueller was appointed, Rosenstein wrote, “The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James 8. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.”

          One reason it produces indictments instead of referrals to the CIA or reports for Congress is probably because somebody in it, rightly or wrongly, wishes to inform the American people what is going on first-hand, and the only way that can be done by the FBI without violating “policy” is to conclude investigations and announce indictments.

          1. SHG Post author

            If this was merely a counterintelligence investigation, kinda seems wasteful to have a special counsel as the FBI could have handled it as part of its ordinary duties. Could it have been something other than just counterintelligence? Maybe involving the word “collusion”? Maybe involving a president or his campaign?

    1. SHG Post author

      Silly people say silly things about silly times and the measure they demand. Let’s leave it that, dear Jake. No need to force in the last word.

  7. Joseph Masters

    These are intelligence officers, correct? Is the fact that Rosenstein announced the idictments pertinent? I ask only because the FBI also functions as the primary U.S. counterintelligence agency.

    The effect on these GRU officers won’t be silly–it likely will trigger PNG(s) if any or all are assigned to operate abroad in a non-Russian aligned nation; unless the 12 aren’t covered by diplomatic immunity, in which case such NOCs would be subject to espionage charges (when outside a Russian-aligned nation).

    It is a bit strange to annouce these counterintelligence actions publicly, but the actions themselves are par for the course in intelligence affairs. The GRU/SVR/CIA/DIA operate in a different world than us unprotected mortals, though they sometimes do intersect in such cases as George Dasch and Robert Hanssen.

    As to concern that foreign laws be applied in the U.S., how does indicting 12 GRU officers have any effect on the Russian or any other nation’s extradition process? Is Edward Snowden really in danger of facing an immediate trial in light of the GRU indictments? How, except for the publicity, is this anything new?

    1. SHG Post author

      This is largely off-topic gibberish, but I post it just in case there is anything useful to anyone else in your comment. It’s probably a mistake on my part.

  8. Pedantic Grammar Police

    Viewed as a law enforcement operation, Mueller’s investigation makes no sense. Viewed as a propaganda operation, it makes perfect sense.

  9. B. McLeod

    Political show-boating, plain and simple. Timed to coincide with the request for another hundred blank subpoenas.

  10. Justin

    I agree. There’s another fundamental issue that’s wrong with this case as a matter of criminal law: proof that the crime took place.

    People sort of wave off this point whenever, usually by a Trump supporter, it’s brought up, but we have to remember that Mueller has no way of proving there was a hack of the DNC beyond a reasonable doubt. His indictments make a bunch of assertions he likely won’t have to prove in a US court of law, but in order to prove collusion, he’s going to need someone he can credibly lay blame on for the actual meddling.

    1. SHG Post author

      Proving the case is always a question, but it comes later at trial. As a general matter, there’s no purpose in raising something that obviously isn’t yet ripe.

  11. Loki

    Doesn’t United States v. Ivanov expressly address the jurisdictional issue? Though I agree with your rational for why US courts shouldn’t have jurisdiction, this case seems to disagree.

    From a case summary:

    Ivanov moved to dismiss the indictment, claiming that the court lacked subject-matter jurisdiction, arguing that “because he was physically located in Russia when the offenses were committed, he can not be charged with violations of United States law.” The court denied Ivanov’s motion, “first, because the intended and actual detrimental effects of Ivanov’s actions in Russia occurred within the United States, and second, because each of the statutes under which Ivanov was charged with a substantive offense was intended by Congress to apply extraterritorially.”

    Perhaps I’m misunderstanding your argument though.

    1. SHG Post author

      While the fact pattern is materially different, the court does hold that the statute provides for extraterritorial jurisdiction, so maybe. There are far more substantial contacts to the US, even if he engaged in conduct in Russia, than here that might explain the invocation of jurisdiction better, but you’re right that they don’t say that’s the case.

  12. Lee Thompson

    Why would them acting in an official capacity affect the finding of mens rea? They knew what they were (accused of) doing was against U.S. law, and intending to “commit a crime” and “do their duty on behalf of their nation” aren’t mutually exclusive concepts.

    Did the Turkish security officers who assaulted the protesters in DC lack mens rea because they were on-duty officers for the embassy? I suppose we’ll never know, but certainly neither Turkey nor the officers feel confident enough in that defense to have them return to the U.S.

  13. Lee Thompson

    Which is why I used it in response to the mens rea question you presented, and not the jurisdiction one. I think you bring up a very good question in regards to jurisdiction that we don’t have a very good answer to yet in the digital age. I’m not convinced that the lack of a good answer renders the charges “silly”, but it is a serious problem.

    But on mens rea, the idea that their official capacity affects the determination of their intent is very troubling. Would foreign agents who commit state-sanctioned murder be less culpable because their government ordered them to commit it? Murder requires mens rea as much as the crimes listed in the Mueller indictment. If we can’t convict them because acting on orders makes the actions not meet the intent bar, that would basically give carte blanche to any regime for any number of heinous crimes. It *can’t* be the case–and if it is (which I doubt), it needs to change ASAP.

    1. SHG Post author

      First, use the reply button like everyone else. You’re not special. Second, is there some reason that eludes me why I give a damn what you think, or that trying to undo your gibberish is worth my time? You don’t get it? Okay then.

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