Conspiracy! Treason! Espionage! FARA?: Your guide to laws for l'Affaire Russe

This is a quick hopefully audience-friendly guide to the main charges that will (and won’t!) play a part in prosecuting collusion with Russia. In particular, I want to highlight the requirements for proving each of these offenses, because that’s valuable for understanding Mueller’s strategy as the various parts of this saga start to come together.

For those hoping to see an actual crime called “collusion” in the list, sorry. That term does have a legal meaning (related to covert market manipulation). Trump’s real estate empire is sufficiently shady that he may very well have engaged in collusion at some point in his life, too, but the Russian involvement with American politics doesn’t include that term in a legal sense. It’s still a perfectly cromulent word to use when discussing the situation informally, though!

Note that the media has been very bad at reporting on this (I’ll get the fainting couch) and frequently gets at least two of the relevant laws confused (the two foreign agent statutes). That’s fair, because they can be a little confusing.

Treason (U.S. Constitution, Article III, Section 318 U.S.C. §2381)

Let’s get this one out of the way first, because people get very excited about it. Collusion with Russia to influence the outcome of an American presidential election is quite probably, in layman’s terms, “treasonous”. But it isn’t treason in the legal sense, which “shall consist only in levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.” 

Two hundred years of jurisprudence agree; “enemies” here specifically requires we actually be at war. It doesn’t matter that we’re philosophical opponents of Russia. It doesn’t matter that Russia has tried to interfere with the working processes of our government. It doesn’t matter that Mueller, or anyone else, has described Russian activity as “cyber warfare”. We are not at war with Russia, and so they are not our “enemies” for the purpose of a treason charge.

Could Congress change this? Well, sure, they could amend 18 U.S.C. §2381, or author some other parallel statute. But they can’t make the change retroactive. Should they? Well, we don’t actually declare war anymore, so it’s tempting to say that the interpretation of treason should be updated for the modern world. But there are already a bunch of other laws that cover treasonous behavior (in a broad sense), and Congress doesn’t have the best track record at fixing problems in this topic area, so… no, it’s probably best to leave well enough alone.

Fun fact: Because the United States is a federal government, citizens owe allegiance to two legal sovereigns — the United States itself and their state of residence. It’s possible to commit treason against an individual state, some of which have broader definitions of the crime. There have been over a dozen historical convictions of treason against one state or another. No, none of Trump’s associates are going to be charged with state treason, either.

Espionage (18 U.S.C. §793 and §794)

Okay, so if none of Trump’s allies committed treason, then at least Butina and Erickson committed espionage, right? I mean, what she’s been accused of doing  was pretty plainly spycraft, and espionage is what spies do. Right?

I promise, after this one, these sections get less disappointing.

Espionage, legally speaking, is a violation of the Espionage Act of 1917 (as—repeatedly—amended). This act doesn’t exactly have a proud history, because for quite some time, it was sidled with the amendments in the Sedition Act of 1918, which sought to criminalize “any disloyal, profane, scurrilous, or abusive language” about the government, the American flag, or the uniforms of the Armed Services. Needless to say, that didn’t survive First Amendment review and has been happily repealed. What remains is almost exclusively a law regarding spycraft that targets military operations or intelligence.

I’m not going to dig deeply into the ways you can violate this law, because it’s really, really fond of long lists of potential options or targets (for example: “…any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place…”) and probably used up the entire 1917 supply of the word “or”. What’s important is that all of the criteria of the Espionage Act require that the targets of the spycraft be connected or involved with “national defense”.

But doesn’t making our elections secure count as defending the nation? I’m not going to argue otherwise, but that doesn’t make campaign or election activity count as “national defense”. It’s not the military, and that’s what this law covers. Butina may be a spy, but her particular brand of spying isn’t this sort of espionage.

Violations of the Foreign Agents Registration Act (22 U.S.C. §618)

Not as snappy a title, huh? But here we go with the laws that matter.

FARA is a 1938 law (with a fat stack of amendments) that requires a broad category of people engaged in political advocacy or financial activity in the United States on behalf of a “foreign principal” register with the Department of Justice. It also mandates they provide regular updates about their relevant activities and about the goals of the foreign principal. Importantly, for the purposes of this law, a “foreign principal” can be any foreign government, foreign organization, or foreign individuals.

Failing to file if required to do so is illegal, as is omitting required information or outright lying on the forms.

To convict someone under this act, you have to prove:

  • that they are acting as an “agent of a foreign principal”; interestingly, you do not have to be able to explicitly identify who or what that foreign principle is.
  • that they have been performing actions that meet the law’s requirements, especially that they served a political purpose
  • that their failure to register, or their omissions or inaccuracies in registration or reporting, were made “willfully”

Alternatively, the Attorney General can determine that a FARA filing is “deficient”, whether or not that was done “willfully”. In that case, you have to instead show:

  • that they were notified in writing by the Attorney General of their deficiencies under the act
  • that, within 10 days of said notification, they still didn’t correct the problems.

“Willfully” flouting FARA gets you a maximum of 5 years and a $10,000 fine. Refusing to fix some problem after the Attorney General’s office asked you nicely has a maximum penalty of 6 months and $5,000. 

Conservatives like to argue that no one actually gets charged for FARA violations, and it’s certainly true that the act’s terms aren’t aggressively enforced. Nevertheless, there have been quite a few civil and administrative cases since the law’s requirements were adjusted in 1966, and a couple cases that only escaped conviction for reasons other than proving the elements of the crime (the FARA charge was dropped in the 1977 Park Tong-Sun case as part of the plea bargain; the 1986 McGoff conviction was dismissed by the Supreme Court because of frankly weird technical issues regarding the statute of limitations for the crime).

Currently, Gates pleaded guilty to a conspiracy to violate FARA, and Manafort has been charged under the act. Manafort, in particular, was given several chances to file amended reports; the prosecution explicitly cites this as proof that his lies and omissions were willful. But, despite reporting to the contrary, this isn’t what Butina is pleading to…

Failure to Register as an Agent of a Foreign Government (18 U.S.C. §951)

This is a more recent law that FARA (originally passed in 1948, but essentially rewritten by amendment in 1983), with a lot in common on its face. What it actually is, though, is a sort of “espionage lite” statute, criminalizing unregistered spying in a broad sense that doesn’t depend on the “national defense” getting involved.

It requires that people acting in the United States on behalf of a foreign government (except for diplomatic and consular officers and the like) notify the Attorney General that they are doing so. That’s it. Failure to register is illegal, and those points are all you have to prove for a conviction under this statute. The big trick is proving that a foreign government is the motivator behind the agent’s actions.

What are the differences between this and FARA?

  • FARA applies only to political action. 18 U.S.C. §951 applies to any activity (but can include political action).
  • FARA agents can be acting on behalf of a “foreign principal” that can include organizations or individuals. 18 U.S.C. §951 only mandates reporting for agents of a “foreign government”.
  • FARA violations can occur anywhere in the world. 18 U.S.C. §951 applies only to actions taken in the United States.
  • Oh, and the maximum penalty for 18 U.S.C. §951 is steeper: up to 10 years in prison.

This is the important charge that Butina pleaded to, especially because it means she’s providing evidence that she was acting directly on behalf of the Russian government itself (and not various propped-up advocacy orgs as was Manafort’s hobby).

Conspiracy Against the United States (18 U.S.C. §371)

That name sure gets your attention, doesn’t it? This is one of those statutes that’s pretty easy to charge when several people are being bad together. Here’s what it requires:

  • Two or more people plan to:
    • commit any “offense against the United States”—here, that means breaking any federal law at the expense of the government itself—or
    • defraud the United States or any federal government agency, for any reason
  • And at least one of the people involved actually does something to try to accomplish that goal.

It is not exactly a high bar. Five years in prison as a maximum punishment (unless you were only conspiring on a misdemeanor, in which case, whatever punishment that offense specifies). Pretty much everyone involved in this whole sordid mess is going to be charged with this one. Failing to file foreign banking reports is considered to defraud the Treasury. Failing to file foreign agent reporting forms is considered to defraud Justice. Obstruction of justice is an offense against the United States. And so on.

Despite the flashy name, this is a really common charge in big, complicated federal cases, because if you’ve done anything illegal, you’ve also done this unless you were acting alone, and it’s sometimes a LOT easier to prove. For example, if you can show that two people were working together with the goal of violating a relevant federal law, but you can only prove one of them actually did something to break the law (or even try to…), the other guy is still guilty of conspiracy against the United States.

Making False Statements (18 U.S.C. §1001)

And in case you thought the last law was pretty easy to break, there’s this, popularly known as “lying to the FBI”. There’s a compelling case to be made that this law is actually dangerously overbroad. But right now, it is what it is.

To prove a violation of 18 U.S.C. §1001, the prosecution must prove that:

  • The topic was “any matter within the jurisdiction of the executive, legislative, or judicial branch”. If, for example, the FBI is asking the questions, then that’s self-evidently true.
  • ”Knowingly and willfully”, either:
    • c​​​​onceals a “material fact” or
    • makes a “materially false” statement

The jurisdiction requirement is a fiddly technical thing, but for the purposes of Mueller and the Trump Cabal, questions asked as part of a criminal investigation essentially always count (the exceptions aren’t really applicable here).

All the “material” requirement means is that the statement has some logical connection to the outcome of what the government was doing. This is interpreted very broadly. Government investigators often ask questions to which they already know the answer. If your answers don’t match their answers, that’s deemed to be material, even if there’s precisely zero chance that the investigators would have been fooled or misled by your response. Originally, that sort of thing wasn’t criminalized because the statute had an “intent to defraud” requirement, where the government had to prove that you were actually trying to mislead them as to the outcome, but that has been long since amended out.

In 1998, the Supreme Court actually broadened the power of this statute by denying the longstanding “exculpatory no” exception. That means, if the feds asked you if you committed a crime (which you did in fact commit), simply denying that you did so is a violation of 18 U.S.C. §1001.

While you shouldn’t usually take legal advice from the internet, here’s one you might consider following: the existence of this law means that, if you’re ever asked a question by an FBI agent (or the like), instead of answering, you should politely ask for their card, and reply that your attorney will be in contact.

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