nationalreview.com – April 13, 2019Andrew C. McCarthy –
Prior to the publication of the stolen Democratic-party emails and internal documents, Julian Assange and WikiLeaks exhorted Russian government hackers to send them “new material.”
That is what we are told by Special Counsel Robert Mueller’s indictment of Russian intelligence officers. (I won’t offend anyone by calling them “spies” — after all, they were just doing electronic surveillance authorized by their government, right?) Assange wanted the Russians to rest assured that giving “new material” to WikiLeaks (identified as “Organization 1” in the indictment) would “have a much higher impact than what you are doing” — i.e., hacking and then putting the information out through other channels.
But time was of the essence. It was early 2016. If Hillary Clinton was not stopped right there and then, WikiLeaks warned, proceedings at the imminent Democratic national convention would “solidify bernie supporters behind her.” Of course, “bernie” is Bernie Sanders, the competitor who could still get the nomination. But if Assange and the Russians couldn’t raise Bernie’s prospects, WikiLeaks explained, Mrs. Clinton would be a White House shoo-in: “We think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”
In a nutshell: Knowing that Russia had the capacity to hack the DNC and perhaps Clinton herself, WikiLeaks urged it to come up with new material and vowed to help bring it maximum public attention. By necessity, this desire to hurt Clinton would inure to Sanders’s benefit. And sure enough, WikiLeaks eventually published tens of thousands of the Democratic emails hacked by Russian intelligence.
So . . . I have a few questions.
WikiLeaks, Moscow, and Bernie Sanders
First, why was there no Sanders-Russia probe? Why, when President Obama directed John Brennan, his hyper-political CIA director, to rush out a report on Russia’s influence operations, did we not hear about the WikiLeaks-Russia objective of helping Sanders win the Democratic nomination? Brennan & Co. couldn’t tell us enough about our intelligence-agency mind readers’ confidence that Putin was rootin’ for Trump. Why nothing about the conspirators’ Feelin’ the Bern?
Don’t get me wrong: I don’t think there is any basis for a criminal investigation of Senator Sanders. But there appears to have been no criminal predicate for a “collusion” investigation of Donald Trump, either — not a shred of public evidence that he conspired in the Putin regime’s hacking, other than that presented in the Clinton-campaign-sponsored Steele dossier (if you can call that “evidence” — though even Christopher Steele admits it’s not). Yet, Trump was subjected to an investigation for more than two years — on the gossamer-light theory that Trump stood to benefit from Moscow’s perfidy.
Yes, of course, this cui bono claim was amplified by what were said to be Trump’s intriguing, if noncriminal, ties to Russia. To my knowledge, however, the mythical pee tape of Steele lore has never been located; it is unlikely, then, that there are any Trump photos that compare, intrigue-wise, to a shirtless Bernie boozing it up in the Soviet Union. Surely that should have been worth a FISA warrant or four.
A more serious question: Why hasn’t Assange been indicted for criminal collusion with the Kremlin — the same hacking conspiracy for which Mueller indicted the Russian operatives with whom Mueller says Assange collaborated? The same conspiracy for which the president of the United States, though not guilty, was under the FBI’s microscope for nearly three years?
The Assange Indictment: Weak and Potentially Time-Barred
The most striking thing about the Assange indictment that the Justice Department did file is how thin it is, and how tenuous. Leaping years backwards, ignoring “collusion with Russia,” prosecutors allege a single cyber-theft count: a conspiracy between Assange and then–Bradley (now Chelsea) Manning to steal U.S. defense secrets. This lone charge is punishable by as little as no jail time and a maximum sentence of just five years’ imprisonment (considerably less than the seven years Assange spent holed up in Ecuador’s London embassy to avoid prosecution).
This is very peculiar. Manning, Assange’s co-conspirator, has already been convicted of multiple felony violations of the espionage act — serious crimes that the Assange indictment says WikiLeaks helped Manning commit . . . but which the Justice Department has not charged against Assange.
Why? Probably because espionage charges are time-barred. Which brings us to the possibility — perhaps even the likelihood — that Assange will never see the inside of an American courtroom.
As I pointed out on Thursday, the 2010 Assange-Manning cyber-theft conspiracy charged by prosecutors is outside the standard five-year statute of limitations for federal crimes: The limitations period was already exhausted when the indictment was filed in 2018. To breathe life into the case, the Justice Department will have to convince both British and American judges that this comparatively minor conspiracy charge is actually a “federal crime of terrorism,” triggering a three-year statute-of-limitations extension.
For some reason, the extension statute — Section 2332b(g)(5)(B) — makes the extra three years applicable to cyber-theft offenses under Section 1030 of the penal code, but not espionage-act offenses under Section 793. I am skeptical, though, that the Justice Department’s cyber-theft charge qualifies for the extension. Prosecutors haven’t charged a substantive cyber-theft violation under Section 1030; they have charged a conspiracy (under Section 371) to commit the Section 1030 offense. That is not the same thing. Typically, if Congress intends that its mention of a crime should be understood to include a conspiracy to commit that crime, it says so. It did not say so in the extension statute.
Why put all the prosecutorial eggs in such a rickety basket?
Protecting Mueller’s Russian-Hacking Indictment
England is a close ally, but getting its courts to extradite people for U.S. criminal proceedings is no lay-up. It is a laborious process, and the outcome, even in strong cases, is uncertain. The Justice Department knows this, yet in its …
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