The Downsides of Mueller's Russia Indictment

Jack Goldsmith
Monday, February 19, 2018, 10:26 AM

Special Counsel Robert Mueller’s Russia indictment represents “a remarkable rebuke of the president’s claims” that the Russia investigation was a “phony Democrat excuse for losing the election,” the Lawfare team concluded.

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Special Counsel Robert Mueller’s Russia indictment represents “a remarkable rebuke of the president’s claims” that the Russia investigation was a “phony Democrat excuse for losing the election,” the Lawfare team concluded. The indictment also educates the American public about the reality and scale of the Russian threat to the American political process more credibly than last year’s intelligence community report on the matter. Perhaps it will help the United States build resilience against future attacks. Deputy Attorney General Rod Rosenstein noted that the indictment alleged neither “that any American was a knowing participant in this illegal activity,” nor “that the charged conduct altered the outcome of the 2016 election.” But the indictment didn’t rule out those conclusions either. And it might be laying the groundwork for future indictments against Americans who aided the Russians, especially with the theory of conspiracy law that it sets forth. The indictment might also promote deterrence. Prosecutors “use such indictments to name and shame operatives, making it harder for them to work undetected in the future,” noted the New York Times story on the indictments. “If they travel abroad, they risk capture and extradition.” (The AP’s Eric Tucker made a similar point.)

That all sounds pretty good. But the Mueller indictment also has potential downsides. The downsides are not intrinsic to Mueller’s task. They are downsides for U.S. foreign relations, which are not his concern. But they are downsides nonetheless. (What follows is not a criticism of the Mueller indictment or the investigation. Mueller is doing his job and doing it well. What I describe here are costs of trying to deal with electoral interference of this sort through law enforcement institutions in our open society.)

Educating and Emboldening the Russians

I doubt that Mueller sees the indictment as part of the Justice Department’s strategy to deter foreign cyber intrusions through indictments that “name and shame,” and thus impose costs on and deter, those responsible for the intrusions. Stopping future attacks is not Mueller’s job; his indictment of the Russians serves other purposes. But (as noted above) commentators have been mentioning the costs and potential deterrent impact that the indictment poses for those it names.

Naming the names in the indictment will have little if any impact on future Russia operations. Yes, the concrete individual attributions will imposes costs, mostly travel costs, on those named. And considered alone, it might have a small deterrent effect going forward. But compared to the benefits of the operation to Russia that Mueller describes, these costs are microscopic. On the one side, with a relatively paltry budget of $1.25 million per month, Russia achieves the most disruptive information operation in history that continues to roil American politics even if it did not swing the election. On the other side, the United States responds with weak sanctions by President Obama, somewhat stronger but still relatively minor congressional sanctions against Russia that Trump has not enforced, and now an indictment by Mueller that names names about the 2016 interference. A rational Russia would see the tiny extra costs imposed by the Mueller indictment as very much worth the benefits it reaped in disrupting American politics. As President Obama noted in late 2016, “The idea that somehow public shaming is going to be effective … doesn’t read the thought process in Russia very well.”

By itself, the absence of a “name and shame” benefit from the Mueller indictment is not a downside of the indictment. But there are three potential affirmative costs that flow from the disclosures in the indictment.

First, concrete attribution followed by little, if any, public response by the United States reveals extraordinary weakness and vulnerability. (This is one reason why, as this paper explains, it often makes sense for a nation not to publicly attribute cyber attacks unless it can effectively respond.) Many people have noted that the United States’ weak responses to Russia after public attribution in 2016 invited future meddling. Mueller’s convincing attribution deepens this dynamic. The Russians may also link the “naming and shaming” associated with the Mueller indictment with the Trump administration’s broader effort, despite Obama’s disclaimer, to “name and shame” the Russians for other cyberoperations. For example, the administration justified last week’s attribution to Russia of the devastating 2016 NotPetya ransomware attack on name and shame grounds. The rational Russian reaction to this broader initiative, of which the Mueller indictment might be seen a part, would be to think that the United States is more exposed, and have weaker tools of retaliation, than previously thought.

Second, and ironically, Mueller’s credible attribution may enhance the impact of the Russian information operation. Imagine that someone interfered with the 2016 election—by doxing DNC officials, manipulating social media against Clinton, and the like—but the United States never determined who did it. In that counterfactual world, the operation would almost certainly have been less impactful. A large part of the operation’s success, a central element of its discordant impact, is the fact that the Russians did it. (This one reason why Julian Sanchez thinks the Russians might have wanted to get caught.) The fact of Russian involvement continues to impact our politics every day—in the Mueller and congressional investigations, in the President’s slashing attacks on our intelligence and law enforcement institutions, and in the polarization that these events foster. And part of the operation’s impact going forward is that a Red-scare mentality may infect our marketplace of ideas. (Many people, including Sanchez, think it already has.) To the extent this happens, the indictment’s credible allegations would have contributed to the Russia operation’s impact.

A third downside of the Mueller indictment concerns the information it revealed about incriminating emails and about the various social media, dark web, and related techniques that the Russians used in the 2016 election operation. On the excellent Lawfare Podcast about the indictment, Ben described the forensics behind these revelations as “awesome,” and said the indictment describes “an incredible intelligence operation on the part of our people to have obtained a bunch of this information.” Perhaps so. But one downside of the indictment’s description of the U.S. intelligence operation is that the Russians might learn from it. It’s hard to know what authorities Mueller used to gather this information, but it was probably collected via domestic law criminal law authorities, based at least in part on information previously collected by the intelligence community. We cannot know for sure, but the indictment might reveal something about U.S. intelligence collection methods that will make it easier for the Russians to hide their tracks in the future. The Russians might also reverse engineer the indictment to learn about how to better operate in the future—for example, by trading off U.S. and non-U.S. email providers, or U.S. and non-U.S. platforms, or by spoofing geography in a more sophisticated manner. This reverse engineering might enable them to exploit the seams in U.S. intelligence collection laws and thereby deflect U.S. intelligence and law enforcement scrutiny in the future. It is hard to know the ultimate impact of this variable, especially since the U.S. social media and payment firms that were manipulated by the Russians can also learn how to better defend themselves. But the U.S. firms might have learned how to better defend themselves via private government disclosure. Making the information public helps the Russians along this margin.

The United States “is under attack … by entities that are using cyber to penetrate virtually every major action that takes place in the United States,” noted Director of National Intelligence Dan Coats last week. Coats added: Russia is likely to continue “using elections as opportunities to undermine democracy, sow discord and undermine our values.” The Mueller indictment is not designed to meet this enormous threat, and it doesn’t. But, in sum, it does underscore to the Russians once again the very weak tools the United States has to defend itself or retaliate in the face of Russian information operations; its convincing attribution may contribute to the operation’s impact; and it might also help the Russians operate with more stealth in the future should they choose to do so.

Educating and Emboldening Other Adversaries

Whatever the impact of Mueller’s indictment on the Russians, it will definitely educate other U.S. adversaries. The Mueller indictment is a proof of concept for information operations against the United States. It shows how adversaries can cause extraordinary harm to the United States with inexpensive tools. It lays out in detail how one nation used American social media and payment tools, plus various elements of the dark web, in one particular configuration to wreak enormous harm on the United States at a relatively small cost. It will give them ideas about how these and related tools can be used in different configurations to cause damage across the infinitely broad American attack space. It will help the more sophisticated among these adversaries to understand how to use these tools to minimize detection by the U.S. government. And it further underscores what the failure to respond meaningfully to the Russia information operation to date has made clear: The United States has remarkably weak tools to defend itself from, or respond to, these attacks. For adversaries seeking to do harm to the United States, especially weak ones, the Mueller indictment is emboldening.

(After I wrote this piece I noticed that Andy McCarthy wrote a piece over the weekend that made some of the points above. It is worth a read.)

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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