Indicting Russia: The International Arc of Mueller’s Investigation

Sara Stappert

Vol. 39 Business and Development Editor

The United States Department of Justice charged thirteen Russian individuals and three Russian companies on February 16, 2018[1] with an impressive indictment alleging a sophisticated network designed to influence the 2016 presidential election.[2] Deputy Attorney General Rod J. Rosenstein described the indictment as such: “[T]he Russian conspirators want to promote discord in the United States and undermine public confidence in democracy…”[3] February’s indictment paints a picture of a sophisticated, multi-pronged, and well-financed Russian operation that sought to influence democratic electoral outcomes by targeting then-candidate Trump’s opponents in the 2016 presidential election. The indictment details that Russian operatives traveled across the United States to gather intelligence and froth political discord. Those operatives worked with American citizens to focus their efforts on “purple” election battleground states like Colorado, Florida, and Virginia. Some of the Russians involved even posed as Americans in August of 2016 and coordinated with Trump campaign staff to organize rallies in Florida. The indictment alleges violations of U.S. election law that forbids foreign nationals from making certain expenditures in United States elections and that requires foreign agents to register with the Federal Election Commission.[4] The charges also include violations of computer fraud laws in which the perpetrators purchased space on computer servers located in the United States in order to hide their Russian affiliation.[5] The indictment issued by Robert Mueller and his special counsel team is unprecedented in its scope and in the startling conduct that it details. Yet, we are left with many questions: What does this indictment actually mean for the Russia investigation? How do Mueller and his team expect to pursue those Russian individuals and companies that were charged by the grand jury and what does extant international law allow Mueller to do? What does this indictment mean, if anything, for the future prosecution of international computer hacking and computer crimes? None of the Russian citizens, now Russian defendants, have been arrested as Russia does not generally extradite its citizens to the United States for prosecution.[6] One of the most influential aspects of the indictments, then, was its naming and shaming of the Russian operatives involved. This shaming makes it harder for those individuals to remain undetected in the future and makes it more likely that they will be captured and extradited if they travel internationally. Even though the indictment does not say that the Russian individuals or companies named in the indictment changed the outcome of the election in 2016—indeed, American intelligence officials have concluded that there is no way of calculating the exact effect of any Russian influence[7]—the shame associated with these charges does definitely tarnish Russia’s reputation. This is an important effect of the indictment as it is highly unlikely that any of the defendants will appear in a United States court to face Mueller and his team.[8] After all, and as mentioned earlier, extradition is unlikely; no extradition treaty exists between the United States and Russia, and Russia’s constitution contains a provision prohibiting the extradition of Russian citizens. The Russian nationals are accused of working with the St. Petersburg-based Internet Research Agency, which had millions of dollars at its disposal and was designed to reach the American electorate through the Internet and social media. The indictment alleges that Russian computer specialists created hundreds of social media accounts that eventually attracted hundreds of thousands of followers. Some posed as Christian activists, others as anti-immigration groups, still others as supporters of the Black Lives Matter movement and the Tennessee Republican Party. Furthermore, Mueller pointed to thirteen digital advertisements paid for by the Russian operation—all of them attacked then-candidate Hillary Clinton and promoted Trump.[9] Given that much of the illegal action alleged in the indictment took place over the Internet and through the use of computers, the question of how international law should respond to international hacking is omnipresent in the questions surrounding what this indictment means and what will happen next. With any questions about hacking come questions about proper attribution. If the hacking and illegal computer fraud are undertaken by state organs and non-state actors that are directed by the state, the question of attribution is an easier one because liability is likely to be linked to the state (in this case, Russia). However, from the indictment and Russia’s response, it is still unclear if the defendants named in the indictment were acting on behalf or under the direction of the Russian government.[10] International law bans a state’s coercive activities in the territories of another state.[11] Article 2 of the United Nations Charter provides that states are not to “intervene in matters that are essentially within the domestic jurisdiction of any states.”[12] The Article also declares that a state cannot “intervene, directly or indirectly, for any reason whatsoever, in the internal affairs of any other states.”[13] If the United States could show that Russia violated this provision of the United Nations Charter (which may be difficult given that such Russian action did not necessarily encompass a threat of force), it could grant the United States the option to use self-defense as provided in Article 51 of the Charter.[14] This Article grants the right to use self-defense, including physical force, if an unwarranted attack has occurred against the responding state.[15] However, a physical confrontation between the U.S. and Russia would not be the ideal response, and is a response the U.S. is unlikely to pursue given the potentially fatal consequences of such retaliation. Thus, the U.S. is likely to be left only with the option of pursuing sanctions against Russia and using the shame attached to this indictment as a tool to continue to tarnish Russia’s reputation on the international stage.[16] Another complicating factor even with that principle, though, will be the question of consent. Were those named in the indictment acting with the consent and possibly under some direction of Donald Trump, his campaign staff, or those in his administration? If that were the case, it might narrowly change the calculus of how international law would govern the conduct and the ramifications. In any event, even if U.S. actors had consented to the interference, the actions of the thirteen Russian individuals and the three Russian companies are fairly plain examples of coercion. Despite also being in violation of several provisions of U.S. domestic election and cybersecurity law, the Russians have arguably breached provisions of international law that prohibit this kind of meddling and coercion.[17] Mueller’s indictments dramatically escalate the pressure on the President and his staff to acknowledge the potential influence by those charged in the indictment. Everything charged in the indictment involves tactics that can and very well might be used again, tactics with potent force given the role the Internet and social media increasingly play in all aspects of society. The U.S. midterm elections are less than eight months away. It is possible that foreign agents (linked to Russia or some other state) will use social media, false identities, and false information to unlawfully influence American voters via their computer screens.[18] However, it is important to note the egregious and worrisome violations of international law that are being uncovered as well, mainly through computer fraud allegations. It will be interesting to watch both Mueller’s work as well as the reaction of the international community to what is revealed, charged, and prosecuted in the realm of the cybercrime. How the U.S. and international bodies like the United Nations respond to these events might set the stage for how future incidents of remote and Internet-based election fraud are dealt with. Whether responding with force in self-defense is authorized or sanctions recommended, the result will shape the future of international law in this area.

[1] United States of America v. Internet Research Agency LLC et al., Case 1:18-cr-00032-DLF, Indictment (Feb. 16, 2018), https://www.justice.gov/file/1035477/download. [2] Matt Apuzzo & Sharon LaFraniere, 13 Russians Indicted as Mueller Reveals Effort to Aid Trump Campaign, N.Y. Times (Feb. 16, 2018), https://www.nytimes.com/2018/02/16/us/politics/russians-indicted-mueller-election-interference.html. [3] See Id.                                                     [4] Tom McCarthy, Ten Key Takeaways from Robert Mueller’s Russia Indictment, The Guardian (Feb. 16, 2018), https://www.theguardian.com/us-news/2018/feb/16/russians-indictment-mueller-charges-fbi-investigation-what-are-they. [5] Id. [6] Apuzzo & LaFraniere, supra note 2. [7] Id. [8] Martin Pengelly, Putin: Russia Will ‘Never’ Extradite 13 Nationals Indicted by Mueller, The Guardian (March 4, 2018), https://www.theguardian.com/us-news/2018/mar/04/vladimir-putin-never-extradite-13-russians-robert-mueller. [9] Apuzzo & LaFraniere, supra note 2. [10] Pengelly, supra note 7. [11] Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int’l L. Comm’n, Art. 18, http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf. [12] U.N. Charter art. 2. [13] Id. [14] Lindsey Mattila, International Law and Election Interference, The Claremont Journal of Law and Public Policy (Feb. 13, 2017), https://5clpp.com/2017/02/13/international-law-and-election-interference/; U.N. Charter art. 51. [15] Mattila, supra note 13. [16] Id.; Charles Harding, Foreign Election Interference and International Law, Polyas (June 22, 2017), https://www.polyas.de/blog/en/electoral-research/foreign-election-interference. [17] Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int’l L. Comm’n, Art. 18, http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf; U.N. Charter art. 2. [18] Brent Budowsky, Explosive New Mueller Russia Indictments Are a Game-Changer, The Hill (Feb. 16, 2018), http://thehill.com/opinion/white-house/374271-explosive-new-russia-indictments-are-a-game-changer.