I’ll preface this by saying IANAL, and I may be connecting dots that shouldn’t be connected. That being said there is an angle in the indictment of the Russian hackers that I haven’t seen made, where it relates to the limitations of protections of free speech provided by SCOTUS.
As we know, the First Amendment provides wide latitude in free expression, and by consequence people are allowed to say many different things that would be criminal in other countries with a less maximalist stance towards free speech. For example, Donald Trump’s wide manner of slanderous and inflammatory diatribes are in general legal, and there isn’t much legal recourse to him spouting nonsense on Twitter or in front of his rallies.
There are still some limits, and speech can be criminal under some very narrow sets of criteria. The notable Supreme Court precedent relevant here is Bradenburg v. Ohio, which sets forth the test for unprotected speech at “imminent lawless action.” And the indictment, by specifying that the Russians hackers first attempted to spearfish third party Clinton emails on July 27th 2016, the same day that Trump requested the Russians to release the “missing” Clinton emails, suggests that Mueller may be threatening Trump directly though subtly on the grounds of “imminent lawless action”, among other things.
As has been pointed out by many other outlets, Trump’s following spiel on July 27th 2016 and the specific note of that date in that indictment for Russian hacking activity seemed unlikely to be a coincidence:
Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.
And compare what the indictment says about Russian activity also on July 27:
22. The Conspirators spearfished individuals affiliated with the Clinton Campaign throughout the summer of 2016. For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.
There’s been talk about how this potentially involves Trump himself in the criminal conspiracy, depending on what he knew about it ahead of time, or if this was even an intentional coordinated signal for the Russian hackers to do something previously planned. However, I haven’t seen this issue taken from the angle of “imminent lawless action”.
The Brandenburg test is a very high hurdle to pass for speech to be criminalized. The two components are
- The speech is “directed to inciting or producing imminent lawless action,” AND
- The speech is “likely to incite or produce such action.”
In isolation, Trump advocating criminal activity (in particular Russian hacking and espionage) is not illegal if it is vague enough and there’s not reason to believe that the advocated crimes would occur soon. However, by specifying that the Russians attempted to spearphish for more specific emails the first time the very same day that Trump advocated the Russians releasing those particular emails in his own circuitous way, Mueller’s team shows that the incited action actually did occur in the immediate timeframe. If someone advocates committing a crime, and that crime is committed soon after, it is a lot easier to show that the speech is “likely to incite or produce such action” than if such action was purely hypothetical. The “I hope you are able...” type vagueness might provide a bit of cover as to whether it was intended at directing the lawless action, such as Trump used when making dubious requests of Comey, but the greater context makes the statements even more damning and potentially criminal.
Now, perhaps Mueller doesn’t intend to go down this road and there might not be a relevant statute available or desirable to prosecute this type of criminal speech, but from this very particular and detailed timeframe of the Russian hackers first attempts to find and steal emails in different servers that seemed more likely to contain the emails that Trump requested, it is hard to see this as anything less than a direct legal threat to Trump. Articles of impeachment don’t necessarily need to specify particular statues for malfeasance, either.
Mueller’s team is walking up to the Trump gates and banging on them.