You want to charge Trump for goading Russia to release classified information after not charging Hillary for gross negligence in making that information easily available to Russia in the first place?
Am I awake?
“It’s probably the most egregiously stupid thing I’ve ever heard a party nominee say ever,” said Bradley Moss, a lawyer specializing in national security law.
Moss believes that there’s a legal case to charge Trump for his comments, because he was calling for Russia to take “imminent lawless action,” which is speech not covered by the First Amendment.
Moss added that Trump could theoretically be charged as a conspirator under the Computer Fraud and Abuse Act, which carries a maximum penalty of 10 years in prison.
“You could argue what Trump was urging Russia to do was hack Hillary’s server and release the contents to the media — conspiring with them to hack into a private server and release confidential information to the public,” Moss explained.
I won’t pretend to know the ins and outs of the Computer Fraud and Abuse Act but I will point out to you that Trump didn’t use the word “hack” this morning. He asked Russia to “find” her missing e-mails, which may sound like splitting hairs but would doubtless be flagged by his lawyers in court as proof that he wasn’t necessarily encouraging criminal activity. By “find” he could have meant obtaining them from a third-party who already has them. And he wasn’t talking about a prospective hack; he was assuming that they’d already harvested the contents of her private server years ago. He was encouraging a leak. The hack has, presumably, already happened.
As for “imminent lawless action,” I think that’s a reference to when incitement can and can’t be prosecuted legally under the First Amendment per Brandenburg v. Ohio. Under Brandenburg, you can locked up for inciting lawbreaking if what you say is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Trump’s arguably compromised on the first half of that insofar as he’s encouraging Russia to release classified material; how you would go about proving that what he said is likely to cause them to release it, though, I have no idea. The textbook case for incitement charges is when an angry mob is threatening to attack a person or his property and someone in the crowd yells “Get him!” The speaker in that case should know that saying something like that under the circumstances might lead to violence. In this case, there’s every reason to think the Kremlin’s going to do what it wants to do no matter what Trump says and really no reason to believe another leak is “imminent.” In fact, as pure politics, him egging them on to release what they’ve got is stupid since it leaves him open to blame if and when Russia really does doxx Hillary. Democrats will turn around and say, “Trump put them up to it! He’s working with the KGB to influence the election!” They’ve been saying that already this week but now they have a ready-made soundbite from the man himself that they can use to call him a Putin stooge.
It’s not just Moss who wants Trump in the dock. This is floating around this afternoon too:
— Steve Vladeck (@steve_vladeck) July 27, 2016
Okay, I read it. That’s the statute for solicitation to commit a crime of violence. Hacking doesn’t involve “physical force.” And even if you want to overlook that, you run into the same problem above with “find” instead of “hack.” I think it’s fair to read what Trump said today as a wink-wink invitation to further hacking — his unofficial motto is “whatever helps Trump is good,” after all, therefore past, present, or future hacks that damage Clinton are good — but good luck convicting a guy of a speech crime beyond a reasonable doubt when he hasn’t even specified that he’s talking about illegal activity. That case would be hard enough even with a private citizen as the defendant. Trying to prosecute a presidential candidate for something said during a campaign press conference, no matter how gross, is off-the-wall looney tunes. A court would never allow it for fear that the judiciary would be seen as meddling in an election. (Meddling in U.S. elections is reserved for the Kremlin.) They’d leave it to voters to render a verdict.
All of this “let’s prosecute Trump” idiocy is really just rhetorical barfing at the spectacle of an American presidential nominee egging on Russian fascists to spill the state secrets his opponent negligently failed to protect. And even that barfing, I think, is aimed less at Trump himself than at the fact that he’ll pay no political price for this, that it’ll all be subsumed in partisan red/blue wagon-circling — the same way the left circled the wagons for Hillary for months over Emailgate. It’s the flip side of the point in the last paragraph: If you can’t trust voters to render a thoughtful verdict on something like this, the theory goes, you have to appeal to the courts. But in the meantime, the barfing continues:
Philip Reiner, a former National Security Council official in the Obama administration, called Trump a “scumbag animal.”
“Hacking email is a criminal activity. And he’s asked a foreign government — a murderous, repressive regime — to attack not just one of our citizens but the Democratic presidential candidate? Of course it’s a national security threat,” he added.
And William Inboden, who served on the NSC during the George W. Bush administration, said Trump’s comments were “tantamount to treason.”
“Trump’s appeal for a foreign government hostile to the United States to manipulate our electoral process is not an assault on Hillary Clinton, it is an assault on the Constitution,” said Inboden, who now teaches at the University of Texas at Austin.
“This just is beyond my own understanding of the responsibilities that candidates have to be loyal to their country and to their country alone,” said Clinton crony and former CIA chief turned Defense secretary Leon Panetta. “You’ve got now a presidential candidate who is in fact asking the Russians to engage in American politics and I just think that’s beyond the pale.” You may hear something like that tonight from Biden and Obama. I’ll leave you with this, as a helpful remind for when and if you do:
— Andrew C. McCarthy (@AndrewCMcCarthy) July 27, 2016