Earlier this year his lawyer publicly asked for an immunity deal for Flynn to “tell his story,” and there has been widespread speculation that Michael Flynn has turned on Donald Trump and is now cooperating with the FBI on Russia investigation. This has not yet been confirmed.
Keep this possibility in mind, however, with the Wall Street Journal’s breaking news story on the first direct evidence of collusion between Russian hackers and Michael Flynn, a senior advisor to the Trump campaign, through a GOP intermediary. GOP Operative Sought Clinton Emails From Hackers, Implied a Connection to Flynn (sorry, pay wall article).
Steve Benen provides the details from the WSJ report. Collusion questions grow louder in Trump, Russia scandal:
As Donald Trump’s Russia scandal has evolved, one of the key questions is whether the Republican presidential campaign cooperated in some way with our adversary’s attack on the American election. It is, of course, a matter of ongoing investigation . . . this line of inquiry took an important turn with this Wall Street Journal article.
Before the 2016 presidential election, a longtime Republican opposition researcher mounted an independent campaign to obtain emails he believed were stolen from Hillary Clinton’s private server, likely by Russian hackers.
In conversations with members of his circle and with others he tried to recruit to help him, the GOP operative, Peter W. Smith, implied he was working with retired Lt. Gen. Mike Flynn, at the time a senior adviser to then-candidate Donald Trump.
So, what we have here is a Republican operative, Peter Smith, who assembled a team in the hopes of obtaining Hillary Clinton’s emails. Smith and his team reached out to people they believed to be Russian hackers, affiliated with Russia’s government, because Smith and his cohorts thought these hackers may have stolen the materials.
The point, of course, was to then use the stolen documents in the United States, exploiting materials from Russia to affect the American election. In other words, we’re talking about a group of folks who, in a rather literal sense, tried to collude with Russia as part of the country’s attack on our election.
There is nothing to suggest that Smith was officially part of Trump’s presidential campaign. That said, Smith told multiple people at multiple times that this project was coordinated with Michael Flynn – who at the time was a senior adviser to Trump, and who went on to become the White House National Security Advisor in the Trump administration.
In fact, the WSJ article added that Smith reportedly told a computer expert he was “in direct contact with Mr. Flynn and his son” while the project was ongoing.
Note: Peter W. Smith died after giving this interview to the Wall Street Journal.
Trump World’s reaction to the report seemed especially notable: “A Trump campaign official said that Mr. Smith didn’t work for the campaign, and that if Mr. Flynn coordinated with him in any way, it would have been in his capacity as a private individual.”
As for the broader political landscape, in recent weeks, several White House allies in conservative media have begun pushing the line, with increasing vigor, that even if the Trump campaign colluded in some capacity with Russia, that wouldn’t be a crime.
“It’s a curious response to the allegations. For one thing, such cooperation could, in fact, be illegal.” Sorry, Fox News: Legal Experts Say Trump Collusion With Russia Could Be a Crime (Mother Jones):
In recent weeks, President Donald Trump’s defenders have been pushing a curious new line: Even if Trump and his presidential campaign colluded with Russia’s secret operation to subvert the 2016 campaign, that would not be illegal. Fox News senior political analyst Brit Hume made this argument during a panel Sunday, saying, “Collusion, while it obviously would be alarming and highly inappropriate for the Trump campaign…it’s not a crime.” He added, “Can anyone identify the crime?”
Well, yes, somebody can. Ten lawyers queried, including academics, former prosecutors, and defense attorneys familiar with federal election and hacking laws, cite more than a dozen federal statutes that prosecutors could use to charge someone who collaborated with Russian intelligence to influence the 2016 election.
“There is a whole plethora of areas of potential criminal liability,” says Tor Ekeland, a defense attorney who has represented clients in high-profile hacking cases in federal and New York courts. “To say that there is none is just willful ignorance in the service of propaganda.”
What charges special counsel Robert Mueller might eventually level depends on specific circumstances and evidence collected. But laws against abetting or conspiring to commit computer fraud or identity theft and against solicitingcampaign aid from foreign nationals offer two potential areas under which prosecutors could seek indictments, the lawyers say. Prosecutors also could use broader federal statutes related to honest services fraud, wire fraud and conspiracy to bring charges against anyone who colluded, according to the attorneys.
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Ekeland notes he has defended clients prosecuted for actions comparable to those of the hypothetical Trump aide. Hacking into someone’s email is a federal felony. Encouraging that crime may constitute a conspiracy to violate federal identify theft and computer fraud laws, Ekeland says. (On July 27, at a campaign press conference, Trump essentially encouraged Russia to hack Hillary Clinton: “Russia: If you’re listening, I hope you’re able to find the 30,000 emails that are missing.”)
Renato Mariotti, who prosecuted cybercrime and financial fraud cases as an assistant US attorney in Chicago, says a person who encouraged the release of emails stolen from an American could face prosecution for aiding and abetting computer fraud. “You have to know of the criminal activity and take affirmative steps to help it succeed,” he says.
Attorneys also say that a person who colluded with hackers should worry about being charged for wire fraud, a broad law that prohibits the use of communications technology, including the internet, with the intent to commit fraud. They also note that a colluder could face prosecution for violating copyright, trade secrets, and even espionage laws.
An indication of the breadth of charges federal prosecutors can level in hacking cases came in March in California. Prosecutors there charged four men, including two members of Russia’s Federal Security Service, with a high-profile penetration into 500 million Yahoo user accounts in 2014. The two Russian officials, accused of supporting but not participating in the breach, drew dozens of federal charges, including conspiracy to commit computer fraud, conspiracy to commit access device fraud, conspiracy to steal trade secrets, and conspiracy to commit wire fraud.
A law barring foreign nationals from providing assistance in US elections could also put Trump aides in legal danger. That law, strengthened in the wake of allegations that Bill Clinton’s 1996 reelection campaign benefited from Chinese support, prohibits foreigners from providing “anything of value” in connection with an election. Bob Bauer, who served as White House counsel under former President Barack Obama, wrote in a June 2 analysis that Russian actions aimed at helping elect Trump, including the hacking and release of embarrassing emails from the Clinton campaign and the Democratic National Committee, represent an overlooked illegal campaign donation. “The case is more or less hiding in plain sight,” Bauer insisted.
Under this law, US campaign officials must provide “substantial assistance” to a foreign person or entity helping their campaign in order to face criminal liability. Secret contacts aimed at securing Russian help would probably meet the standard. So might public statements like Trump’s invitation for more Russian hacking and his repeated praise of WikiLeaks, the site that disseminated the Democratic emails swiped by Russian intelligence. Bauer argued that such statements alerted Russian officials that their efforts were welcome. Those statements also made clear that Trump considered Russia’s assistance to be “of value,” said Bauer.
The attorneys point out that Fox News pundits have underestimated the power of federal prosecutors. They emphasize that federal prosecutors have substantial latitude under broadly worded federal laws to generate charges. “They’ll look at the evidence and say, ‘What statutes can we charge?’” said Mariotti. “They’re going to be looking through the federal code.”
Hume is right that there is no law specifically prohibiting “collusion.” But prosecutors can probably indict someone for conduct described as collusion under a broad federal conspiracy statute, says Ekeland. The law imposes a maximum five-year sentence on anyone who “conspires either to commit any offense against the United States, or to defraud the United States.” Prosecutors can charge a person who engages in “any act to effect the object of the conspiracy.”
Conspiracy laws offer prosecutors a widely used tool and are often faulted by civil liberties advocates because they allow prosecutors to indict people for a role in crimes they did not personally execute. But plenty of these laws do exist, and former prosecutors do not have to stretch their imaginations to consider ways Mueller and his team can possibly apply them in the Russia investigation.
“There are thousands of people in jail for colluding,” Ekeland says. “It’s another word for conspiracy.”
Those GOPropagandists at FAUX News don’t no shit about the law. Their only objective is to confuse and to mislead an easily gullible viewership who are militantly ignorant in defense of their Dear Leader. And that ought to be a crime.