‘Collusion’ as Farce: The Hunt for Hillary’s Hackers

Do you know what federal prosecutors do when a thief brings the FBI incriminating documents that he has swiped from his victim’s home?

They use the documents to convict the victim.

And they would use such stolen evidence to convict the victim even if the thief were a hacker. Even if the thief were a hacker from Russia!

If you find such government behavior unseemly, the New York Times will really give you the heebie-jeebies. The Paper of Record, as we shall see, would not only use stolen information; it would encourage the theft—arguably, a felony violation of federal law.

Once you grasp this, you get a sense of what drivel is the Hunt for Hillary’s Hackers, the latest Russia molehill that the Trump-deranged have fantasized into Mount Elbrus. Served up by the Wall Street Journal, it is the tale of a now-deceased Republican activist’s quest for the 33,000 emails former Secretary of State Clinton hoarded on a private server and attempted to destroy, in violation of various federal laws.

The heavy breathing belies a principle that should come as no surprise to journalists, as it is their bread and butter. As long as one is not complicit in a theft and has no fiduciary obligation to the victim, he is permitted to exploit stolen information that he chances upon.

Under the Fourth Amendment, for example, you are protected from the prosecutor’s use against you of evidence the government’s own agents have unlawfully seized from you; you have no protection, though, from a prosecutor’s using against you evidence stolen from you by some non-government actor—as long as the government was not a participant in the theft.

To be sure, federal and state laws exist that bar trafficking in stolen property. They are tough to enforce, however, due to difficulties in proving the receiver’s knowledge that the property was stolen (and, in most jurisdictions, assessing the property’s value). These laws, moreover, are geared toward fencers of stolen goods for profit. They are largely irrelevant in the realms of law-enforcement, media, and politics, where what matters is the information value, not the acquisition and sale of stolen items.

It is worth noting, then, that there was a time, not so long ago, when one might have thought the Wall Street Journal would be more interested in finding Hillary Clinton’s 33,000 deleted emails than in identifying others who were looking for them.

The Journal’s story is yet another moving of the collusion goalpost. Remember (though doing so gets more and more difficult): the original allegation was that the Trump campaign conspired with the Putin regime to steal the 2016 election. There is no evidence of this—Russia did not steal the election, and Trump did not conspire with the Kremlin. So, the story shifted to the studiously vaporous claim that 1) Russia tried to “influence” the election—basically, by putting out information that was true but embarrassing to Democrats; and 2) Trump must have “colluded” in this effort because . . . well . . . because.

The problem for “collusion” is twofold. The embarrassing information in question (emails hacked from the Democratic National Committee and Clinton campaign chairman John Podesta), while interesting to political wonks, had no impact on the public, the vast majority of whom have no idea what a John Podesta is. More importantly, there is neither evidence nor commonsense reason to believe that Putin involved Trump in his shenanigans.

Thus, the narrative is morphing from “collusion” into “obstruction”—a half-baked accusation based on actions that were within Trump’s lawful discretion and defensible on the merits (viz., recommending against the prosecution of former National Security Adviser Michael Flynn, and dismissing FBI Director James Comey). The obstruction narrative reportedly has its own rabbit holes: suppositions about bribery, money laundering, and who knows what else wishful thinking will conjure up.

As the saga lumbers toward its final Mueller ex machina, the trick for the anti-Trump camp is to keep the Russia theme alive with new disclosures that are sensational (or at least sensationalized)—all the while hoping no one notices that each new disclosure makes the original “steal the election” allegation increasingly implausible.

align=”left” In their giddiness, the media ignored the fact that back-channels are a staple of diplomacy between rivals. More saliently, they ignored the fact that Kushner’s meetings regarding the back-channel (which was apparently never set up) had occurred in December 2016—i.e., weeks after the 2016 election

Until now, the best example was the much-hyped reporting that Trump’s son-in-law and confidant Jared Kushner had tried, on the sly, to set up a communications back-channel to the Kremlin. In their giddiness, the media ignored the fact that back-channels are a staple of diplomacy between rivals. More saliently, they ignored the fact that Kushner’s meetings regarding the back-channel (which was apparently never set up) had occurred in December 2016—i.e., weeks after the 2016 election. Obviously, if Trump had conspired with the Kremlin to steal the election, there would have been no reason to establish a back-channel after the election; it would already have been up and running months earlier.

And now we have the Hunt for Hillary’s Hackers.

According to the Journal’s reports (here and here), Peter W. Smith was “a longtime Republican opposition researcher” who died in mid-May. That was about 10 days after he was interviewed by the Journal about his keen interest in the 33,000 emails Hillary Clinton deleted after transmitting and storing them via her unauthorized, non-secure server. As the 2016 presidential campaign wound down, Smith deduced from the extraordinary efforts Clinton had undertaken to destroy the emails (including her contractor’s use of the “BleachBit” program) that they would be damning, perhaps destroying her chance for victory in November. He surmised that the emails had probably been stolen by hackers, a conclusion bolstered by a July 2016 press conference in which then-FBI Director Comey described Clinton’s reckless disregard for cyber-security.

Smith thus recruited a team of lawyers and technically proficient investigators to try to locate the emails he suspected (but did not know and could not prove) were stolen. Because cyber-thieves connected to Russian intelligence are notoriously adept, and no doubt because they were already suspected of stealing Democratic National Committee (DNC) emails, he calculated that Russian hackers might have the motherlode. He thus retained an investigator in Europe who was fluent in Russian.

align=”right” In other words, the story is a big nothing . . . except, you’re supposed to conclude that there is incriminating fire under the lack of even smoke. Why? Because Smith claimed to know people in the Trump campaign.

By scouring the dark web, Smith’s group located five hacker groups that were potential repositories of the possibly pilfered emails. Only two of the five were Russian. No surprise there: Smith did not have a relationship with Russia, and he just wanted the emails—he didn’t care which hackers had them. Though he got samples from at least one of the hacker groups, they could not be authenticated as Hillary’s emails. Smith’s quest thus ended in failure. In fact, he never confirmed that anyone, let alone Russian intelligence, had actually stolen Hillary’s emails.

In other words, the story is a big nothing . . . except, you’re supposed to conclude that there is incriminating fire under the lack of even smoke. Why? Because Smith claimed to know people in the Trump campaign.

To be clear, Smith was not part of the Trump campaign—he was a Republican who wanted Hillary Clinton to lose (there was a lot of that going around). But he implied to some people that Michael Flynn, a top Trump campaign figure and later (for a brief time) Trump’s national security adviser, knew about and was interested in his effort.

Nor is that all. Lawfare, an invaluable national security site (but with a decided anti-Trump flavor these days), has published a report by intelligence expert Matt Tait, from whom Smith sought help. Tait recounts that Smith conveyed familiarity with the Trump campaign’s inner workings. (Not so subtle implication: he was more than opposition research; he was on the team.)

Smith also sent Tait a document outlining the Hunt for Hillary’s Hackers project, which suggested involvement by four different groups of people. One group was identified as the “Trump Campaign (in coordination to the extent permitted as an independent expenditure).” Listed as part of this group were some campaign heavyweights, including Flynn, Steve Bannon and Kellyanne Conway. (Even less subtle implication: the Hunt for Hillary’s Hackers was a covert Trump operation).

Tait describes himself as non-partisan. His suspicion that these Trump officials might have been complicit in Smith’s initiative is unconvincing. Bannon and Conway have denied involvement, the former having never heard of Smith before the Journal’s reports; the latter having had no contact with Smith in years—and none during the campaign. But even if we put their denials aside, remember: Tait himself was also among those Smith listed in the document as involved in the project. As Tait explains, he never agreed to become involved. Smith appears to have been a familiar type of political name-dropper; the droppings do not mean the names actually had anything to do with his schemes.

Tait’s real alarm, however, was over the possibility that Russia might gull Smith into peddling misinformation. He was taken aback by Smith’s insouciance about the source of the emails. Tait writes:

It is no overstatement to say that my conversations with Smith shocked me. Given the amount of media attention given at the time to the likely involvement of the Russian government in the DNC hack, it seemed mind-boggling for the Trump campaign—or for this offshoot of it—to be actively seeking those emails. To me this felt really wrong.

In my conversations with Smith and his colleague, I tried to stress this point: if this dark web contact is a front for the Russian government, you really don’t want to play this game. But they were not discouraged. They appeared to be convinced of the need to obtain Clinton’s private emails and make them public, and they had a reckless lack of interest in whether the emails came from a Russian cut-out. Indeed, they made it quite clear to me that it made no difference to them who hacked the emails or why they did so, only that the emails be found and made public before the election.

Tait seems like a well-meaning fellow. I certainly empathize with his concerns about Russian operations against our country. But I fear he is going to be even more “shocked” when he learns that many reputable outfits, very much including the Department of Justice and major media outlets, are quite content to locate stolen information from unsavory sources and use it against the people from whom it has been stolen.

Attempts to locate and exploit stolen information are common, regardless of whether we think them admirable. Smith made it clear to Tait that he couldn’t have cared less whether the Hillary emails were stolen by Russia or by the man on the moon. What mattered is that they would prove misconduct that would cripple Clinton’s electoral prospects. That is what happens in politics, among other endeavors of the “ain’t beanbag” sort.

align=”left” Attempts to locate and exploit stolen information are common, regardless of whether we think them admirable.

If Smith had conspired to do the actual hacking of Clinton’s server, that would be a serious crime. If the Trump campaign had joined such a conspiracy to commit hacking, that would be a true scandal. But if the goal was simply to obtain information that some independent actor had already stolen, and then to use that information to the detriment of a political opponent, that is fair game—and happens all the time.

As it happens, there is no proof that Trump campaign officials were actively involved in Smith’s project. But it wouldn’t matter if they had been. In fact, it wouldn’t matter if there had been no Smith at all and Trump himself had put a full-page ad in the Wall Street Journal, encouraging anyone, including Russian hackers, to send along any emails they might have hacked from Hillary. As long as Trump was not complicit in any theft and merely wanted to acquire and use information damaging to his political adversary, that would be politics as usual.

In fact, there would have been nothing improper if such a full-page ad was published with no actual expectation that the emails would surface, but simply to remind voters of how irresponsible Clinton had been in handling sensitive information. Indeed, that is essentially what Trump did in a late July campaign press conference, famously expressing “hope” that Russia would be “able to find the 30,000 emails that are missing.” While the media-Democrat complex wailed that Trump was encouraging foreign interference in the election, his quip was better understood as a public-relations dagger aimed at one of his adversary’s fatal weaknesses.

The Journal’s struggle to whip an empty cupboard into a seven-course scandal put me in mind of another quest for elusive information: Donald Trump’s tax returns. Like the Hillary emails, anti-Trumpers are certain the tax returns are a gold mine. And like the anti-Hillary “opposition researchers,” they have good reasons. Just as Hillary lied about her emails (just personal; no State Department business; no classified info; no Clinton Foundation intermingling, etc.), Trump lied about his tax returns, promising to disclose them before reneging.

align=”right” The Journal’s struggle to whip an empty cupboard into a seven-course scandal put me in mind of another quest for elusive information: Donald Trump’s tax returns. Like the Hillary emails, anti-Trumpers are certain the tax returns are a gold mine. 

I don’t know that I’d call New York Times columnist Nicholas Kristof a Democrat opposition-researcher, but he has worked himself into a Peter Smith-like lather over Trump’s tax returns. A little over three months ago, he took to Twitter with an earnest appeal:

Now, it is a serious federal crime, punishable by up to five years’ imprisonment, for an IRS official to disclose confidential tax information without authorization—to anyone, let alone a journalist. Unlike Smith, Kristof was not desperately trying to locate some unflattering information he suspected someone else had stolen. He was actively encouraging the commission of theft.

Having been a prosecutor for many years, I couldn’t help but remember the penal statute prosecutors cite more than any other: the crime of aiding and abetting (Section 2 of Title 18, U.S. Code). It states in pertinent part: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” [Emphasis added.]

“Punishable as a principal” means that a person who, say, counsels, induces or procures the commission of a federal felony (e.g., a public official’s unlawful disclosure of tax return information) is prosecutable as if he had committed the offense himself—chargeable for the same crime and subject to the same prison sentence.

Now, don’t get me wrong. I am not suggesting that Nicholas Kristof should be prosecuted. In truth, I think he just did transparently what journalists do furtively, and routinely, when they deal with government sources who leak confidential information to them.

But it does seem to me that—unless you subscribe to the Trump-deranged view that the president is a cretin and therefore anything goes—what Kristof did was worse than anything done by Smith, or whoever Smith may or may not have known in the Trump campaign. I also seem to recall that when a portion of a Trump tax return was actually leaked, there was an astonishing outbreak of laryngitis among people who are now quite exercised over the Hunt for Hillary’s Hackers. Only now, suddenly, is there great moral turpitude in seeking stolen information from reprehensible sources for political gain.

What a farce.

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About Andrew C. McCarthy

Andrew C. McCarthy is a former chief assistant U.S. attorney best known for successfully prosecuting the “Blind Sheikh” (Omar Abdel Rahman) and eleven other jihadists for waging a terrorist war against the United States – a war that included the 1993 World Trade Center bombing and a subsequent plot to bomb New York City landmarks. He is a recipient of the Justice Department’s highest honors, helped supervise the command-post near Ground Zero in lower Manhattan following the 9/11 attacks, and later served as an adviser to the Deputy Secretary of Defense. His several popular books include the New York Times bestsellers Willful Blindness: A Memoir of the Jihad and The Grand Jihad: How Islam and the Left Sabotage America. He is a senior fellow at National Review Institute and a contributing editor at National Review. He is a frequent guest commentator on national security, law, politics, and culture in national media, and his columns and essays also appear regularly in The New Criterion, PJ Media, and other major publications.