I have seen a fair amount of commentary regarding the press conference held yesterday by Donald Trump. During the event, he says “Russia, if you’re listening. I hope you’re able to find the 30,000 emails that are missing. I think you would probably be rewarded mightily by our press.” He further states, “They probably have them. I’d like to have them released. It gives me no pause, if they have them, they have them. If Russia or China or any other country has those emails, I mean, to be honest with you, I’d love to see them.” Many, as noted in the news piece, have said that Trump’s words amounted to encouraging espionage. Others, as Politico reports here, have even suggested treason (though a phrase I have also seen is “tantamount to treason.” I’m not sure what that means). Still others, such as here at C&C, have said that Trump could not have been encouraging the hacking of Clinton’s server because the hacking already occurred, the hackers already have the emails, and the server is no longer online.
I want to address this combination of claims by raising some issues that I think have gone unexplored. I am not, to be clear, claiming that Trump committed a federal crime or that he intended to do so. I just want to better understand the arguments here.
It is, of course, a federal crime for a foreign national, or anyone else, to commit espionage against the United States. 18 U.S.C. 793, 794. It is also a federal crime for any person to aid, abet, counsel, command, procure, or induce the commission of a federal crime. See 18 U.S.C. 2. The aider and abettor is treated as a principal, meaning he or she is guilty of the target crime (here, espionage).
As to the claim that Trump was encouraging future hacking of Clinton’s email server, then it must be remembered, as the C&C post says, the server went offline long ago. But I do not think that is the main concern. Even if the hacking itself (under the Espionage Act, the “gathering” of the national defense information) already occurred, there remains the concern that such hacked information could still be “communicated” or “delivered” or “transmitted,” including to a foreign government. 18 U.S.C. 793, 794. So it is not sufficient to absolve Trump of culpability simply on the ground that the server can no longer be hacked; its information can still be communicated or delivered or transmitted, and encouraging that would still be criminal. Indeed, Trump specifically said that he wanted the emails to be released. Also, traditionally, factual impossibility is not a defense to an attempt prosecution (but see below).
Now, some might say that Trump was being sarcastic and did not intend to encourage any crime. A lot of ink has been spilled over the mens rea required for aiding and abetting under Section 2. Federal courts have been inconsistent, though in a recent case, Rosemond v. United States, the Supreme Court attempted to clarify the standard, at least as to a 924(c) prosecution. The Court said that a person is liable under Section 2 if he “(1) takes an affirmative act in furtherance of the offense, (2) with intent of facilitating the offense’s commission.” This seems like a pure specific intent standard. If Trump was speaking tongue-in-cheek or joking, then specific intent could not be established – but ask yourself, don’t you think he really does want the emails to be communicated or released publicly, if the hackers have them?
But even if the standard is one of specific intent, and even if it could be shown that Trump specifically intended to facilitate espionage by his encouragement, the question remains whether any encouragement must actually aid the principal actor. At common law, the accomplice’s assistance had to actually aid the person committing the target offense, and in Rosemond, the Court said section 2 is derived from common law principles. And yet, in Rosemond, the Court did not appear to impose that kind of reading upon section 2. Rather, merely engaging in the prohibited act, with requisite mens rea, would appear to be sufficient even if it did not actually aid (so, unlike at common law, under this theory an attempt to counsel or encourage the principal would be enough, and some federal courts have recognized such a thing as attempted aiding and abetting under section 2). Still, I am not confident that I have found sufficient authority stating unequivocally that attempting to encourage a crime is sufficient for section 2 liability if it does not actually encourage the commission of a crime. Nonetheless, the question I am asking is whether he could be liable for encouragement, if the emails would be communicated or transmitted regardless of his statements.
As to treason, readers know that I have covered this ground several times before (including as recently as last week, when it was a Trump supporter who accused Hillary Clinton of treason). To be treasonous, Trump had to intend to betray the United States. But even if that could be shown, the Treason Clause of Article III requires giving “aid and comfort” to an “enemy.” For the same reasons that Trump may not have violated the complicity provisions of Section 2, it could also be argued that he did not actually give any “aid” to an “enemy.” Though it might not be our Government’s favorite place, I think there would be a serious question as to whether Russia is an “enemy,” as that term is used in the Treason Clause (though I’m open to the argument). Again, let’s all just calm down the treason talk.
This, of course, is hardly the first time that Trump has flirted with criminality. Nor should his statements come as any particular surprise. But this episode shows three things worth noting.
First, Trump’s comments are ironic. Trump (and other Republicans) have accused Hillary Clinton of being unfit for the presidency because she, they argue, violated the Espionage Act and posed a threat to our national security. Trump, it seems, has now forfeited any credibility or legitimacy in criticizing Clinton’s alleged criminality, or her danger to our national security. When you tell a foreign power that you “hope” they are able to find damaging information about your political opponent by hacking into her computer, and that you want that unlawfully obtained information to be released publicly, even if you are sarcastic (and I am skeptical of that explanation here), you have lost whatever credibility you may have had in claiming superiority on national security.
Second, and related, this episode further reveals that, even if Trump’s statements were not prosecutable under the Espionage Act and the complicity provisions of Section 2, he continues to demonstrate why he is not, and can never credibly be, the “Law and Order” candidate. To continue a theme I began recently here, you cannot be the candidate of “Law and Order” if you encourage a foreign national or foreign government to hack into, deliver, and/or reveal sensitive information obtained unlawfully from computer systems of American citizens. Your offense is aggravated if you express enthusiasm at the prospect of the foreign national or foreign government revealing unlawfully obtained information about a political opponent that could damage her.
Third, and perhaps as bothersome, Republicans have been disturbingly tepid on this episode. Proponents of “law and order” and of protecting American national security – as Republicans claim to be – should have been aggressive and unequivocal in denouncing Trump’s comments, whether actually criminal or not – as many did after his comments about Judge Curiel. One can only imagine the head-explosion in Republican circles if Clinton or any other Democratic candidate ever said such a thing.
As we saw in Cleveland, the unmitigated hatred of Hillary Clinton, and the bizarre and unprincipled embrace of Trumpism, is leading many Republicans down a lot of dangerous paths – paths from which they may never be able to emerge unscathed.
UPDATE: As noted in this CNN piece, Trump has now said he was “being sarcastic.” But sarcastic as to what? As to the hacking, that’s one thing. But yesterday, on the issue of the hackers revealing the emails, Trump seemed both serious and unequivocal (as was his tone during the press conference on this matter). He also said, “to be honest with you” and indicated his desire to to see the emails. None of his wording or behavior seemed consistent with sarcasm (one does not normally say “to be honest with you” when one is joking). And his seeming joy at the prospect of someone releasing Clinton’s missing emails seems to belie any assertion that he does not desire that to happen. In other words, the sarcasm excuse seems contrived, at least as to the issue of release.