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October 27, 2017

Renato Mariotti, a member of the Just Security Editorial Board and former federal prosecutor in Illinois, has written incisive and sophisticated legal analysis on the Trump-Russia investigation for our site and also on his popular Twitter account. This post is the first in a series that will collect some his most insightful Tweet threads of the week, and add contextual insights that Just Security‘s readers might find interesting.

Renato announced his candidacy for Illinois Attorney-General on Thursday night. We had already and independently planned this series on Renato’s tweet threads for our readers. So, this week we will begin with his tweet related to the announcement:

 

Threads 1 and 2: What role did big data analysis firm Cambridge Analytica data play in the Trump campaign?

In this thread, Renato analyzes the statement released by Michael S. Glassner, who serves as Executive Director of Trump for America, Inc., President Donald Trump’s 2020 re-election campaign. Glassner contends that the Trump campaign relied only on voter data from the Republican National Committee and its big data providers, and denies that voter data from any other source played a role in the Trump campaign’s victory.

Glassner’s carefully worded statement is notable for two reasons.

First, it downplays the role Cambridge Analytica played in the Trump campaign and emphasizes the campaign’s data partnership with the RNC. However, CEO Alexander Nix told the New York Times in March 2017 that CA conducted tens of thousands of polls for the Trump campaign, even though it was not in consideration for partnership with the RNC. Likewise, CA officials said in media interviews around March that the firm’s outreach helped energize Rust Belt voters for Trump. Moreover, the Trump campaign’s FEC filing shows that it made 5 payments totaling $5.9 million to CA between July 29, 2016 and December 12, 2016. In sum, it is clear that CA at least provided some services for the Trump campaign.

At the same time, it is difficult to tease out the extent to which Cambridge Analytics actually did motivate voters to support Trump or provide useful information to the campaign. And Trump officials have previously downplayed that CA’s methods were useful. Brad Parscale, Mr. Trump’s digital director during the campaign and the person who ultimately hired the firm, told 60 Minutes in an interview earlier this month that CA’s “psychometric” analysis was not of any use.

Second, by focusing on voter data, it avoids the question of potential Trump links to Julian Assange (and thus to Russia), which were raised by Betsy Woodruff’s recent piece in the Daily Beast. Woodruff reported that Cambridge Analytica head Alexander Nix had sought Julian Assange’s help in uncovering Hillary Clinton’s deleted emails. WikiLeaks was reportedly given the DNC emails by “Guccifer 2.0,” a hacker identified by the U.S. Intelligence Community as a Russian government-directed asset.

 

In a related thread from earlier in the week, Renato notes that Nix’s statement that he contacted Julian Assange about distributing Clinton emails could be used against Nix in a criminal trial. There are two likely exceptions to the rule against hearsay under which this information could be entered into evidence: the exception for statements against interest, and the exemption for statements by a party opponent. (Hearsay is defined as a statement made by a speaker outside of the courtroom, which is being offered inside the courtroom to prove the truth of a matter – e.g., the statement “I shot John Doe” being used to prove that the speaker did, in fact, shoot John Doe, absent corroborating evidence for the statement.)

Under the Federal Rules of Evidence exception for statements against interest, a statement (1) made by a speaker who is unavailable at trial (2) that is against that person’s pecuniary, proprietary, or penal interest (3) at the time it was made can be admitted in spite of the hearsay prohibition. Likewise, the Federal Rules of Evidence exemption for statements by a party opponent could allow the statement in as well: any statement offered against an opposing party that was (1) made by that party, (2) that the person believed to be true can be admitted into evidence.

Nix could also potentially be charged with the crime of conspiracy if he (1) agreed with someone else to do something illegal together, and (2) engaged in preparation to follow through with the plan. Aiding someone in hacking is illegal, and so a remaining legal question may be whether Nix and Assange actually formed an agreement to carry out the hacking.

What is more, Renato notes that it is a federal crime to (1) knowingly (2) receive stolen material (3) worth at least $5,000, or to take a substantial step toward doing so. If Assange and Nix made arrangements for Nix to receive the 33,000 stolen emails, that might count as a substantial step, making Nix potentially liable.

Finally, Renato notes that the emails suggest Nix had a strong desire to assist an international hacking operation, although he adds that “foolish people falsely brag about committing crimes,” which is an important qualification. In line with that, a Republican campaign strategist who worked with CA during the 2016 campaign told the Daily Beast: “Alexander Nix is not credible at all…He is a consummate salesman, and there are numerous instances already out in the public record where he made claims that were not just factually wrong—they were total fabrications.”

 

Thread 3: “Non-Thread” About Steele Dossier

In the brief “non-thread” below, Renato notes the Washington Post report this week confirming that Marc Elias, a Clinton campaign lawyer, retained a firm called Fusion GPS in April 2016 on behalf of the DNC and Clinton campaign, which then hired Christopher Steele to conduct opposition research on Trump.

Renato notes that the Steele dossier was originally commissioned by a Republican challenger to Trump during the Republican primaries, and later was funded by the Clinton campaign. There have also been reports that the FBI sought to reimbursed Steele for his expenses incurred while working on the dossier.

Ultimately, as Renato says, the dossier itself could not be used as evidence in a criminal trial, and instead the authenticated sources corroborating its claims would have to be used. House Speaker Paul Ryan announced Thursday that the FBI will hand over documents related to the dossier to the House Intelligence Committee, which may lead investigators to such corroborating sources and allow them to scrutinize the dossier more closely.

 

Thread 4: U.S. Attorney Investigating Manafort for Money Laundering

In this thread, Renato notes that the Manhattan U.S. Attorney’s office is, in conjunction with Special Counsel Mueller’s office, investigating former Trump campaign chairman Paul Manafort for money laundering. He adds that President Trump’s personally interviewing new Manhattan U.S. Attorney candidates creates at least an appearance of impropriety. Those candidates would also have jurisdiction over Trump Tower and Trump’s other holdings in Manhattan.

 

NOTE: This post does not reflect or otherwise represent endorsement by Just Security or any of its editors of, or opposition to, any candidate in any election for political office.

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