Donald Trump’s Call for Russia to Hack the U.S. Might Be a Felony

The GOP nominee says lots of crazy things on the campaign trail. But this one could open him up to prosecution—if the DOJ was willing to go there.

Lehtikuva Lehtikuva/Reuters

Did Republican presidential nominee Donald Trump just call for a felony to be committed? On Wednesday, he urged a foreign government to hack an American citizen and release personal emails.

“Russia, if you're listening, I hope you’re able to find the 30,000 emails that are missing” from emails that Hillary Clinton turned over to the State Department, Trump said in a lengthy press conference in Doral, Fla. “I think you will probably be rewarded mightily by our press. Let’s see if that happens. That will be next. Yes, sir.”

Trump himself has had financial interests in Russia. He has also praised Russian President Vladimir Putin and has said that if Russia were to invade NATO members, the United States might not come to their defense.

Trump was apparently referring to emails from Clinton’s private email server that she didn’t turn over to the State Department because they involved personal matters.

Trump’s incendiary comments came on the heels of the theft and leak of emails from the Democratic National Committee, an operation that, as The Daily Beast first reported, U.S. official believe was carried out by the Russian government and may have been designed to help Trump in the polls.

Trump appeared to urge a U.S. adversary suspected of criminal activity essentially to go further and attack his opponent. The comments drew ire from across the national security community.

Minutes later, Trump’s vice presidential nominee, Mike Pence, contradicted the candidate, calling for Russia to be held accountable should it be involved in the DNC hacking. The stolen emails were published last week by Wikileaks, and some security researchers believe the emails were provided by an agent of the Russian government. Pence released a statement Wednesday saying if Russia is interfering with the election, “I can assure both [political] parties and the United States government will ensure there will be serious consequences.”

Trump allies were at pains to explain the nominee’s plea for Russian intervention. Newt Gingrich said Trump had simply made a “joke.”

Rudy Giuliani, the former New York mayor, offered a different explanation. “The Clintons have a monetary relationship with Russia,” Giuliani said during a press conference in Philadelphia. He said that Trump wanted the emails released to the FBI. But that’s not what Trump originally called for. In his statement, he said that the leaker of Hillary’s emails would be “rewarded mightily by our press.”

A top Clinton adviser quickly condemned Trump’s comments. “This has to be the first time that a major presidential candidate has actively encouraged a foreign power to conduct espionage against his political opponent,” aide Jake Sullivan said in a statement. “That’s not hyperbole, those are just the facts. This has gone from being a matter of curiosity, and a matter of politics, to being a national security issue.”

The top Democrat on the House Intelligence Committee, Rep. Adam Schiff, added that the call for illegal hacking “shows staggeringly poor judgment even for him.”

“With so many unanswered questions about Trump’s ties to the Kremlin, it’s imperative that Trump immediately release his tax returns and disclose his financial ties to Russia,” Schiff added.

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Trump’s comments were politically explosive. But it’s not clear whether he was inciting criminal activity. He did not refer specifically to how Russia or any other country might obtain emails from Clinton’s private server. And if the Russians had already hacked Clinton’s private server, the crime for which Trump was arguably calling had already been committed. The distribution of stolen emails would certainly be a crime, legal experts said.

In Washington, where many have come to expect the unexpected from Trump, Wednesday’s comments were at least troubling to some.

“It’s probably the most egregiously stupid thing I’ve ever heard a party nominee say ever,” said Bradley Moss, a lawyer specializing in national security law.

Moss believes that there’s a legal case to charge Trump for his comments, because he was calling for Russia to take “imminent lawless action,” which is speech not covered by the First Amendment.

Moss added that Trump could theoretically be charged as a conspirator under the Computer Fraud and Abuse Act, which carries a maximum penalty of 10 years in prison.

“You could argue what Trump was urging Russia to do was hack Hillary’s server and release the contents to the media—conspiring with them to hack into a private server and release confidential information to the public,” Moss explained.

However, it’s unlikely, Moss continued, because the Department of Justice and FBI are unlikely to want to be “diving into a political nightmare.”

“From a political standpoint, this is beyond the pale, something that should be disavowed,” Moss said. (Moss and a colleague, Mark Zaid, represent The Daily Beast in a lawsuit seeking information about how Clinton’s lawyers handled and sorted her email when determining which ones should be turned over to the State Department and which ones she could retain because they didn’t bear on her official duties.)

Now that Trump is the GOP presidential nominee, he will be eligible to receive classified intelligence briefings, something that top intelligence officials are sweating over, given Trump’s penchant for talking extemporaneously.

Not knowing his intent, such statements could limit the amount of classified information U.S. officials give to Trump, which he is entitled to as a presidential nominee, an official familiar with the process explained to The Daily Beast. Trump and Clinton will reportedly begin receiving classified briefings after this week’s convention.

House Speaker Paul Ryan had previously asked Director of National Intelligence James Clapper to deny Clinton classified briefings, due to her use of a private email server as Secretary of State, but Clapper has said that briefings would be provided for both candidates on a nonpartisan basis.

This month, FBI Director James Comey announced that while Clinton would not be charged for having classified information on her server, it was “possible” that hostile foreign governments had gained access to her email account.

Rep. Devin Nunes said in a statement that Trump’s comments addressed unanswered questions from that investigation.

“Most likely, Donald Trump was simply making light of Hillary Clinton setting up her own homebrew email server that trafficked in classified information and her sending insecure emails from the soil of known foreign adversaries. Seeing as the FBI concluded that this server may have been hacked, Clinton supporters are really the last people who should be lecturing us about the importance of cybersecurity. Nevertheless, now that he is officially a candidate for president, Trump should consider that his public comments will receive much more scrutiny than before—especially when it comes to U.S. foreign relations.”

As Trump called for Russia to infiltrate Clinton’s servers, some of his fellow Republicans were torching the Kremlin for the DNC hack.

"Every American, without regard to political party, must face this grim reality: While the Obama Administration idles with empty platitudes and fantasy resets, Mr. Putin’s Soviet-style aggression has escalated to levels that were unimaginable just a week ago,” Nebraska Sen. Ben Sasse said in a statement. “America is digitally exposed. The United States must take serious offensive and defensive actions now. Russia must face real consequences."

Trump’s cozyness with Putin and his advisers’ ties to Russia highlight a growing chasm within the Republican Party, which for the last 35 years has lionized Ronald Reagan’ as the ultimate cold warrior who stood up to Soviet expansionism and aggression. Skepticism of authoritarian governments—and Putin in particular—has been a key feature among conservative foreign policy thinkers. Trump appears to be trying to drag the party toward Putin almost on his own, and traditional forces are pulling back.

On Wednesday morning, the leader of Republican forces in the House weighed in: “Russia is a global menace led by a devious thug. Putin should stay out of this election,” said Brendan Buck, a spokesman for Speaker Ryan.

Trump made his statements at a press conference Wednesday in Florida, which started as an attempt by Trump to distance himself from the DNC hack.

“I have nothing to do with [Vladimir] Putin. I don’t know anything about him,” the real estate mogul declared. (Though he claims to have never spoken to the Russian leader, Trump has, in the past, bragged about meeting him.)

Despite evidence to the contrary, the GOP nominee added: “If it is Russia, which it’s probably not—nobody knows who it is—but if it is Russia, it’d be for a different reason. Because it shows how little respect they have for our country. When they would hack into a major party and get everything.”

While computer hacking is a crime, nations routinely steal each other’s digital information in the conduct of espionage. After ex-intelligence agency contractor Edward Snowden released classified information about surveillance operations, the U.S. was shown to have monitored German Chancellor Angela Merkel’s cellphone, an embarrassing revelation. But it’s one thing for a state to sponsor a cyber attack, and is another for a politician to urge another state to target his opponent.

Of course, this isn’t Trump’s first—or 10th—outrageous statement when it comes to global security. Some U.S. defense and intelligence officials have become almost numb to the near-daily torrent.

“The worst part of all of this is that it will probably lead to a jump in his poll numbers,” one exasperated defense official said upon hearing Trump’s latest statement.

—with additional reporting by Gideon Resnick and Andrew Desiderio in Philadelphia.