In such divided times, we shouldn't be surprised that the Supreme Court embraces passive virtues in order to guard their authority.
After a year of nonstop coverage by the media, that Russia or Russians attempted to influence our 2016 elections by means of an internet and social-media campaign is probably accepted by everyone. The question we have had for Robert Mueller, a special prosecutor, is whether criminal laws were broken. He has now attempted to answer that question by having successfully convinced a grand jury to return an eight-count, 37-page indictment against three Russian organizations and thirteen Russian nationals.
The indictment and its impact have been described in apocalyptic terms. House Minority Leader Nancy Pelosi called for “a strategic plan to confront the Russians.” Republican senator Ben Sasse specifically blamed Vladimir Putin for “undermining Americans’ trust in our institutions,” and House Speaker Paul Ryan said that Russians had taken “aim at democracy itself.” The Washington Post editorialized that “Moscow staged an attack on the United States’ democratic political process,” and a Post columnist called it “the second-worst foreign attack [after 9/11] on America in the past two decades.” The New York Times asserted that President Trump needed to “focus on protecting his own country.”
Indeed, the language of the indictment itself lends support to such ominous statements. The indictment alleges that the object of the charged conspiracy was “impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means.” The defendants are said to have “conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions” of the Federal Election Commission and the departments of Justice and State. And in announcing Mueller’s indictment, Deputy Attorney General Rod Rosenstein said that “the Russian conspirators want to promote discord in the United States and undermine public confidence in democracy.”
Preliminarily, let it be noted that the indictment contains no allegation charging any American, including any member of the Trump campaign or administration, with any criminal act. It contains no allegation charging any agent or agency of the Russian government as being involved in any criminal acts against the United States. The indictment does not state that the acts of the charged Russians changed the outcome of the 2016 presidential election. There is no claim that any voting lists or machines were compromised.
Count One, the principal count, charges three private Russian organizations and thirteen Russian nationals with a grandiose conspiracy “to defraud the United States,” that is, the entire federal government—or even, perhaps, the country itself. But no effective result, outcome, or consequence of that conspiracy is alleged. And unlike the normal criminal conspiracy, no other statute is alleged to have been violated as the “object” of that conspiracy.
The alleged substance of Count One is that the Russian defendants had a “strategic goal to sow discord in the U.S. political system.” To accomplish that goal, they “posted derogatory information” about a number of candidates and by “early to mid-2016,” they began to support the presidential campaign of Donald Trump, while “disparaging” the campaign of Hillary Clinton.
Count Two of the Indictment charges fraud based on the breach of the security system of the private money-transferring business, PayPal. Counts Three through Eight charge Russian nationals with stealing and using the identities of six Americans. The word “collusion” does not appear in the indictment.
A Rare and Unprecedented Conspiracy
A “conspiracy” is an agreement by two or more persons to commit a crime together with some overt act to carry out that agreement. The law of conspiracy changed. 18 U.S.C. 371, has two versions. Its normal and most-used version, conspiring “to commit an offense against the United States,” is used to charge a group of people with conspiring to break another law (the “offense”), for example, conspiring to commit tax fraud or conspiring to distribute illegal drugs. In this version of conspiracy, the other law that is the object of the conspiracy has to be stated in the indictment. So long as the indictment alleges the agreement of two or more persons and a minimal number of overt acts, the rest of the indictment normally goes on to allege facts and events that prove the essential elements of the law constituting the “offense” that is the object of the conspiracy. And almost always, a conspiracy indictment of this kind would also charge individual violations of that same law that is the object of the conspiracy.
The other and much-less-used version of the Section 371 statute has the sweeping and indefinite purpose of prosecuting a conspiracy “to defraud the United States, or any agency thereof,” and the means and object of the conspiracy may be “any manner or for any purpose.” This is the conspiracy charged in Count One of the Mueller indictment. In this version of conspiracy, no additional law that is the object of the conspiracy need be referenced, and Mr. Mueller references none. As for “any agency” defrauded, the indictment mentions the Federal Election Commission and the Departments of Justice and State as agencies “charged with enforcing” federal election laws and the registration of foreign nationals.
However, concerning specific federal election laws, the indictment contains no separate counts charging any Russian nationals with violating the prohibitions against election contributions or expenditures. Nor does it charge any separate count alleging that any person violated the laws concerning visas administered by the State Department. It charges no count of violating the Foreign Agent Registration Act (FARA), a law enforced by the Department of Justice.
Defrauding the United States and Its Government
In criminal prosecutions and in common understanding, “fraud” almost always means an intention to acquire or use money or property illegally. And there are several statutes prohibiting fraud against the government, for example, the statute at 18 U.S.C. 286 forbids conspiracies to submit a false claim to any federal agency.
So, what does it mean “to defraud” the entire United States government or “any” of its agencies? The first thing to note is that this version of conspiracy, despite its broad wording, is still normally used to prosecute everyday offenses against the United States government involving money or property.
Nevertheless, the federal courts have clearly held—albeit with ambivalence about the legal principles—that the 371 statute protects the functioning of the United States government as a whole and any of its functioning parts. The law dates from the Nineteenth Century and was originally and primarily designed to catch tax cheats. In the still-relevant-precedent of Hammerschmidt v. United States (1924), the Supreme Court took on a challenge to the broad reading of the “defraud the United States” language and ruled that “it means primarily to cheat the government out of property or money.” The Court went on to rule that the language does include acts that “interfere with or obstruct . . . lawful government functions” but even then, the Court stated, the offense must involve “deceit, craft or trickery, or at least by means that are dishonest.” Whereupon the Court overturned the Section 371 “defraud the United States” convictions of the defendants who had been charged with the general charge of “open defiance” of the World War I military draft, since their “open” deeds did not by definition involve deceit or trickery. This kind of 371 conspiracy has nowadays come to be known, based on a 1957 case, as a “Klein conspiracy.”
Recent cases have endorsed the broad reading of the broad language of Section 371. For example, the appeals court for the Second Circuit has stated that the law “is designed to protect the integrity of the United States and its agencies.” But in that case (United States v. Ballistrea), the criminal offense was regulatory and less than grandiose; the defendant was convicted of “defrauding” the Food and Drug Administration by conspiring to undermine its authority over the interstate distribution of drugs and medical devices. And the federal appeals court for the District of Columbia has endorsed the prosecution of an individual who conspired “to impair the functioning of the Department of Housing and Urban Development.” In that case (United States v. Dean), a HUD employee was convicted of the decidedly less-than-monumental purpose of corrupt management of and realizing personal gain from a HUD program.
But a newer case has cast doubts once again on broad applications of a conspiracy to “defraud the United States.” The case concerned the mundane crimes of developing and selling tax shelters, and thus the defrauded federal agency was the IRS. In United States v. Coplan (2012), the Second Circuit Court of Appeals issued a highly unusual decision in which it overturned jury verdicts based on the insufficiency of the evidence, rather than on procedural mistakes or erroneous trial court rulings. The Circuit, in an extended analysis, wondered if the “defraud the United States” language was unconstitutionally vague but deferred a definitive decision on that issue to the Supreme Court (which later declined to accept the case). Nevertheless, the Second Circuit went on to overturn two 371 conspiracy counts due to insufficient evidence. In both of those reversals, the Circuit found that the totality of each defendant’s acts did not prove the necessary specific intent to “defraud the United States.” The Circuit also overturned three other related convictions based on other criminal laws.
In applying these principles to the indictment of the Russians, special prosecutor Mueller amply qualifies under the Hammerschmidt principle that a prosecution based on “defrauding the United States” should be based on deceit and trickery, since deceit and trickery is exactly what Mueller is charging the Russians with. However, whether the Russian deceit and trickery is actually a criminal fraud against the United States is another question, a question that a jury would ultimately have to decide.
Moreover, if this case were to progress through full judicial proceedings and levels, it would be up to the United States Supreme Court, having avoided the issue in the Coplan case, to take up full consideration of the fundamental meaning of “to defraud the United States” for the first time since Hammerschmidt. The difference in the facts and the stakes of the two cases can hardly be compared. Hammerschmidt involved a group of people protesting the military draft a hundred years ago, whereas the Russian case is being publicly described today as involving the “integrity” of, a “foreign attack” on, and the “undermining of public confidence in” the United States and its government. Such matters have never been the subject of the criminal law, and no one has ever been prosecuted for or convicted of such a crime.