t: Department oI'Jusfice Office of Information Policy 44 I Sheet, NW Six/h qur DC 2051/} Telephane' (101) 514-3642 November 2, 2020 Jason Leopold Senior Investigative Reporter BuzZFeed News Re D01720197003O97 No [97017957 (D C) VRB JMB BRV Dear Jason Leopold This letter is in further response to your Freedom oflnformalion Act (FOIA) request, daled and received in this Office on November 5, 2018, for various records pertaining to Special Counsel Robert Mueller investigation into Russian interference "All"! the 2016 presidential election and other related malters An updated version ofliie "Report On The Investigation lnto Russian Inference In The 2016 Presidenlial Eleclion" ("lhe Repon") is enclosed This updated version will also soon be made available in OlP's online FOIA Library, at ustice zov/oip/availablee dooumentsorp (under the "FOIAeProcessed Documents" heading) In this updaled version of the Report, certain vuthholdings that were originally made pursuant to Exemptions 5, and 7(5) oftlie 5 552mm, (11mm), and (mama) have now been removed lfyou have any questions regarding this letter, please corilacl Courtney Erilovi. ofthe Department's Civil Division, Federal Programs Branch at 20261678467 Sincerely, 7/31" Vanessa Brinkmann Senior Counsel Enclosure U.S. Dep ar tmen t of Justice Attorney Work Product // May Contain Material Prot ected Under Fed . R. Crim . P. 6(e) B. Russian Hackin g and Dumping Operations .............................................................. 175 1. Section 1030 Com pu ter-Intrusion Conspiracy .................................................... 175 a. Background .................................................................................................... 175 b. Charging Decision As to WikiLea ks, Julian Assange , and Roger Stone ....... 176 2. Poten tial Sectio n 1030 Violation By .............................. 179 (b)(6)/ (b)(7)( C)-2 C. Russian Government Outi·each and Contacts ............................................................. 180 1. Poten tial Coordination: Conspira cy and Collusion ............................................. 180 2. Potential Coordination: Foreign Age nt Statutes (FARA and 18 U.S.C. § 951). 181 a. Gove1ning Law ............................................................................................... 181 b. App licatio n ..................................................................................................... 182 3. Camp aign Finan ce .............................................................................................. 183 a. Overview Of Gove1ning Law ......................................................................... 184 b. App licatio n to June 9 Trnmp Tower Meet ing ................................................ 185 i. Thing-of-Value Elemen t ......................................................................... 186 ii . Wi llfuln ess ....... ...................................................................................... 187 iii. Difficulties in Valuing Promi sed Infonn ation ...................................... 188 c. App lication to Wik iLeaks and Roger Stone ................................................... 188 i. Questions Over Whether Wik iLeaks's Activities Are Cove red by the Campa ign-Finance Laws ....................................................................... 189 ii . Wi llfuln ess ....... ...................................................................................... 190 iii. Constituti onal Considerat ions ................................................................ 190 iv. Analysis as to Roger Stone .................................................................... 190 4. False Statement s and Obstruction of the Investigatio n ....................................... 191 a. Overview Of Gove1ning Law ......................................................................... 191 b. App licatio n to Ce1ia in Individuals ................................................................. 192 i. George Pap adopou los .............................................................................. 192 11. 111. (b)(6), (b)(7)(C) ............................................................................. Michael Flynn ....................................................................................... 194 (b)(6) / (b)(7)(C)-2 194 iv. Michael Cohen ...................................................................................... 195 v. Roger Stone ............................................................................................ 196 vi. Jeff Sessio ns ........................................................................................... 197 vii . Others Interviewe d During the Invest igation ....................................... 198 V U.S. Depar tmen t of Justice Attorney Work Product // May Contain Material Protected Under Fed . R. Crim . P. 6(e) and whet her prosecu tion would serve a substantial federal interest that could not be adequately served by pro secution elsewhere or through non-criminal alternatives. See Justice Manual § 927 .220. Section V of the repo1t provides detailed explanati ons of the Office 's charging decisions , which contain three main components. First , the Office detennined that Russia's two prin cipal interference operations in the 2016 U .S. presidential election- the social media camp aign and the hacking-and-dumpin g operati onsviolated U.S. crimin al law. Many of the individuals and entities involved in the social medi a campaign have been charged with pait icipating in a conspira cy to defraud the United States by undennining through deceptive acts the work of federal agencies chai·ged with regulating foreign influen ce in U.S . elections, as well as related counts of identity theft . See United States v. Internet Research Agency, et al., No . 18-cr-32 (D.D .C.) . Sepai·ately, Russian intelligence officers who canied out the hacking into Democrat ic Party computers and the personal email accounts of individuals affiliated with the Clinton Campaign conspired to violate, ainong oth er federal laws, the federal comput er-intru sion statute, and they have been so chai·ged. See United States v. Netyksho, et al., No. 18-cr-215 (D.D .C.). The evidence was not sufficient to charge that fo1mer Trnmp Campaign memb er Roger Stone j oined or pa1ticipate d in the hacking cons irac . A 1 in (b)(6)/ the Principles of Fed eral Prosec ution, the Office also dete1mined not to chai· e (b)(7)( C)-2 with a misdemeanor com uter-intrusion offense .. EAJ........ :aa&I Second, while the investigation identified numerou s links between individuals with ties to the Russian government and individuals associated with the Trnmp Camp aign, the evidence was not sufficient to suppo1t criminal charges . Among other things, the evidence was not sufficient to chai·ge any Campaign official as an unr egistered agent of the Russian governmen t or other Russian princi pa l. And om evidence about the June 9, 2016 meeting and WikiLeaks 's releases of hacked materials was not sufficient to charge a criminal camp aign-finan ce violation . Fmt her , the evide nce was not sufficient to chai·ge that any member of the Tnnnp Campaign conspired with representatives of the Russian governme nt to interfere in the 2016 election . Thir d, the investigatio n established that several individuals affi liated with the Tnnnp Camp aign lied to the Office , and to Congress, about their interactions with Russian-affilia ted individuals and related matters . Those lies materially impaired the investigation of Russian election interference. The Office chai·ged some of those lies as violations of the federal falsestatements statute . Fonner Natio nal Secmi ty Adviso r Michael Flynn pleaded guilty to lying about his intera ctions with Russian Ambassador Kislyak dming the tr·ansition period. George Papadopoulos, a foreign policy adviso r during the campaign period , plea ded guilty to lying to investigato rs about, inter alia, the natme and timing of his interactio ns with Josep h Mifsud, the professor who told Pap adopoulos that the Russians ha d dirt on can didate Clint on in the fo1m of thousands of emails . Fonn er Trnmp Organization attorney Michael Cohen pleaded guilty to makin g false statemen ts to Congress about the Trnmp Moscow proj ect. Based on evidence of his lies to Congress and effo1ts to influen ce witnesses in the vai·ious Russia invest igations, a grand jmy chai·ged Roger Stone with makin g false statements, obstru ction of justice , and witness tampering . And in Febrna1y 20 19, the U.S . Distr·ict Comt for the Distr·ict of Columbi a found that 9 U.S. Depar tmen t of Justice Attorney Work Product // May Contain Material Protected Under Fed . R. Crim . P. 6(e) (b)( 7)(E) -2 Unit 74455 also sent speaip hishing emails to public officials involved in election admin istration and personnel at companie s involve d in voting technology . In August 20 16, GRU officers tai·geted empl oyees of VR Systems, a voting technology compan y that developed software used by num erous U.S. counties to man age voter rolls, and installed malware on the compan y network. Similarl y, in Nove mber 2016 , the GRU sent spea1phishing emails to over 120 email accounts used by Florida county officials responsible for admin istering the 2016 U.S . election. 191 The speaiphi shing emails contained an attached Word document coded with malicious softw ai·e (comm only referre d to as a Trojan) that permitted the GRU to access the infected compu ter. 192 The FBI was sepai·ately responsible for this investigation . We understan d the FBI believes that this operati on enabled the GRU to gain access to the network of at least one Florida county government. The Office did not independe ntly verify that belief and, as explained above , did not unde1i ake the investigative steps that wou ld have been necessaiy to do so. D. Trump Campaign and the Dissemination of Hacked Materials The Trnmp Camp aign showed interest in WikiLeaks 's releases of ha cked materi als throughou t the summer and fall of 2016. Trnmp assoc iate Roger Stone made several attemp ts to contact WikiLeaks founder Assange, boasted of his access to Assange, and was in regulai· contact with Camp aign officials about the releases that Assange mad e and was believed to be planning. The investigatio n was unabl e to resolve whether Stone played a role in WikiLeaks 's release of the stolen Podesta emails on October 7, 2016 , the same day a video was published of candidat e Tnnnp using graphic language about women years eai·lier. 1. Role of Roger Stone a. Background Roger Stone has known President Trnmp for many years and was an advisor to the Trnmp Camp aign from close to its inception until approx imately August 2015. After leaving the Camp aign in August 20 15, Stone cont inued to promo te the Camp aign and maintained regulai· contact with Trnmp Camp aign member s, including can didate Tnnnp and, when they joined the Camp aign, with camp aign officials Paul Manafo1i, Steve Bann on, and Rick Gates . Accord ing to multiple witnesses involved with the Campaign , beginning in June 2016 and continuin g through October 2016 , Stone spoke about WikiLeaks with senior Camp aign officials, inclu ding can didate Trnmp . (b)(7)( E)-2 51 (b)(3)-2, (b)(7)(E)-1 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) email claimed that WikiLeaks would release “All 33k deleted Emails” by “November 1st.” No emails obtained from Clinton’s server were subsequently released. Smith drafted multiple emails stating or intimating that he was in contact with Russian hackers. For example, in one such email, Smith claimed that, in August 2016, KLS Research had organized meetings with parties who had access to the deleted Clinton emails, including parties with “ties and affiliations to Russia.”286 The investigation did not identify evidence that any such meetings occurred. Associates and security experts who worked with Smith on the initiative did not believe that Smith was in contact with Russian hackers and were aware of no such connection.287 The investigation did not establish that Smith was in contact with Russian hackers or that Smith, Ledeen, or other individuals in touch with the Trump Campaign ultimately obtained the deleted Clinton emails. *** In sum, the investigation established that the GRU hacked into email accounts of persons affiliated with the Clinton Campaign, as well as the computers of the DNC and DCCC. The GRU then exfiltrated data related to the 2016 election from these accounts and computers, and disseminated that data through fictitious online personas (DCLeaks and Guccifer 2.0) and later through WikiLeaks. The investigation also established that the Trump Campaign displayed interest in the WikiLeaks releases, and that former Campaign member Roger Stone was in contact with the Campaign about those releases, claiming advance knowledge of more to come. As explained in Volume I, Section V.B, infra, the evidence was sufficient to support computerintrusion (and other) charges against GRU officers for their role in election-related hacking. The evidence, however, was not sufficient to charge WikiLeaks, its founder (Assange), or Stone for participating in the hacking conspiracy with those GRU officers. 286 8/31/16 Email, Smith to Smith. 287 Safron 3/20/18 302, at 3; Szobocsan 3/29/18 302, at 6. 65 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) V. PROSECUTION AND DECLINATION DECISIONS The Appointment Order authorized the Special Counsel’s Office “to prosecute federal crimes arising from [its] investigation” of the matters assigned to it. In deciding whether to exercise this prosecutorial authority, the Office has been guided by the Principles of Federal Prosecution set forth in the Justice (formerly U.S. Attorney’s) Manual. In particular, the Office has evaluated whether the conduct of the individuals considered for prosecution constituted a federal offense and whether admissible evidence would probably be sufficient to obtain and sustain a conviction for such an offense. Justice Manual § 9-27.220 (2018). Where the answer to those questions was yes, the Office further considered whether the prosecution would serve a substantial federal interest, the individuals were subject to effective prosecution in another jurisdiction, and there existed an adequate non-criminal alternative to prosecution. Id. As explained below, those considerations led the Office to seek charges against two sets of Russian nationals for their roles in perpetrating the active-measures social media campaign and computer-intrusion operations. The Office concluded, however, that it did not have sufficient evidence to obtain or sustain a conviction of WikiLeaks or one U.S. national connected to the Campaign (Roger Stone) for participating in the computer-intrusion conspiracy. The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction. At the same time, the Office concluded that the Principles of Federal Prosecution supported charging certain individuals connected to the Campaign with making false statements or otherwise obstructing this investigation or parallel congressional investigations. A. Russian “Active Measures” Social Media Campaign On February 16, 2018, a federal grand jury in the District of Columbia returned an indictment charging 13 Russian nationals and three Russian entities—including the Internet Research Agency (IRA) and Concord Management and Consulting LLC (Concord)—with violating U.S. criminal laws in order to interfere with U.S. elections and political processes.1276 The indictment charges all of the defendants with conspiracy to defraud the United States (Count One), three defendants with conspiracy to commit wire fraud and bank fraud (Count Two), and five defendants with aggravated identity theft (Counts Three through Eight). Internet Research Agency Indictment. Concord, which is one of the entities charged in the Count One conspiracy, entered an appearance through U.S. counsel and moved to dismiss the charge on multiple grounds. In orders and memorandum opinions issued on August 13 and November 15, 2018, the district court denied Concord’s motions to dismiss. United States v. Concord Management & Consulting LLC, 347 F. Supp. 3d 38 (D.D.C. 2018). United States v. Concord Management & Consulting LLC, 317 F. Supp. 3d 598 (D.D.C. 2018). As of this writing, the prosecution of Concord remains ongoing before the U.S. District Court for the District of Columbia. The other defendants remain at large. 1276 A more detailed explanation of the charging decision in this case is set forth in a separate memorandum provided to the Acting Attorney General before the indictment. 174 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) the releases, the defendants used the Guccifer 2.0 persona to disseminate documents through WikiLeaks. On July 22, 2016, WikiLeaks released over 20,000 emails and other documents that the hacking conspirators had stolen from the DNC. Netyksho Indictment ¶ 48. In addition, on October 7, 2016, WikiLeaks began releasing emails that some conspirators had stolen from Clinton Campaign chairman John Podesta after a successful spearphishing operation. Netyksho Indictment ¶ 49. One witness told the Office at one point that the initial release of Podesta emails on October 7 may have come at the behest of, or in coordination with, Roger Stone, an associate of candidate Trump. As explained in Volume I, Section III.D.1.d, supra, phone records show that Stone called Jerome Corsi on October 7, after Stone received a call from the Washington Post. The Washington Post broke a story later that day about a video recording of Trump speaking about women in graphic terms. According to some of Corsi’s statements to the Office (b) (3) Stone (b)(3)-1 said that he had learned about the imminent release of that tape recording, and it was expected to generate significant negative media attention for the Campaign. Corsi told investigators that Stone may have believed from their prior dealings that Corsi had connections to Julian Assange, WikiLeaks’s founder, and that Stone therefore asked Corsi to tell Assange to start releasing the Podesta emails immediately to shift the news cycle away from the damaging Trump recording. Although Corsi denies that he actually had access to Assange, he told the Office at one point that he tried to bring the request to Assange’s attention via public Twitter posts and by asking other contacts to get in touch with Assange. The investigation did not establish that Corsi actually took those steps, but WikiLeaks did release the first batch of Podesta emails later on the afternoon of October 7, within an hour of the publication of the Washington Post’s story on the Trump tape. b. Charging Decision As to WikiLeaks, Julian Assange, and Roger Stone Given WikiLeaks’s role in disseminating the hacked materials, and the existence of some evidence that Stone played a role in coordinating the October 7 release of the Podesta materials, this Office considered whether to charge WikiLeaks, Assange, or Stone as conspirators in the computer-intrusion conspiracy under Sections 1030 and 371.1278 The theory of prosecution would be that these actors were liable as late joiners in an already existing conspiracy. See United States v. Bridgeman, 523 F.2d 1099, 1107 (D.C. Cir. 1975) (“A defendant can join a conspiracy at any 1278 The Office also considered, but ruled out, charges on the theory that the post-hacking sharing and dissemination of emails could constitute trafficking in or receipt of stolen property under the National Stolen Property Act (NSPA), 18 U.S.C. §§ 2314 and 2315. The statutes comprising the NSPA cover “goods, wares, or merchandise,” and lower courts have largely understood that phrase to be limited to tangible items since the Supreme Court’s decision in Dowling v. United States, 473 U.S. 207 (1985). See United States v. Yijia Zhang, 995 F. Supp. 2d 340, 344-48 (E.D. Pa. 2014) (collecting cases). One of those post-Dowling decisions—United States v. Brown, 925 F.2d 1301 (10th Cir. 1991)—specifically held that the NSPA does not reach “a computer program in source code form,” even though that code was stored in tangible items (i.e., a hard disk and in a three-ring notebook). Id. at 1302-03. Congress, in turn, cited the Brown opinion in explaining the need for amendments to 18 U.S.C. § 1030(a)(2) that “would ensure that the theft of intangible information by the unauthorized use of a computer is prohibited in the same way theft of physical items [is] protected.” S. Rep. 104-357, at 7 (1996). That sequence of events would make it difficult to argue that hacked emails in electronic form, which are the relevant stolen items here, constitute “goods, wares, or merchandise” within the meaning of the NSPA. 176 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) time, and can properly be convicted though he was not in the conspiracy at its inception.”); see also United States v. Scott, 64 F.3d 377, 381 (8th Cir. 1995) (“[E]ven if defendant joined the conspiracy relatively late, played only a minor role, and was unaware of some aspects of the conspiracy, he was legally responsible as a co-conspirator for all acts carried out in furtherance of the conspiracy.”). In particular, although it did not participate in the hacking itself, WikiLeaks would be liable for ensuring a market for and maximizing the value of the stolen materials—much as someone who holds himself out as a “fence” may be found to have joined a conspiracy to traffic in stolen goods, see United States v. Hess, 691 F.2d 984, 988 (11th Cir. 1982), and an individual who launders drug money can be a member of a drug-trafficking conspiracy when such laundering activities are “integral to the success” of the overall trafficking venture, see United States v. Orozco-Prada, 732 F.2d 1076, 1080 (2d Cir. 1984). See also, e.g., United States v. Tarantino, 846 F.2d 1384, 1396-97 (D.C. Cir. 1988); United States v. Dela Espriella, 781 F.2d 1432, 1436 (9th Cir. 1986). Stone might similarly be liable under these cases if he too was integral to the computerintrusion conspiracy’s success by ensuring that the stolen materials had their maximum impact upon dissemination. The Office determined, however, that it did not have admissible evidence that was probably sufficient to obtain and sustain a Section 1030 conspiracy conviction of WikiLeaks, Assange, or Stone. See Justice Manual § 9-27.200. The foregoing theory of conspiracy liability depends on proof of an agreement, see Iannelli v. United States, 420 U.S. 770, 777 (1975), whether express or “tacit,” see United States v. Willson, 708 F.3d 47, 54 (1st Cir. 2013) (observing that conspiracy may be proved through “a tacit agreement shown from an implicit working relationship”) (internal quotation marks omitted). It would also require evidence of knowledge on the part of the putative conspirator that the criminal objective of the conspiracy has not yet been completed. Cf. Rosemond v. United States, 572 U.S. 65, 78-80 (2014). (discussing role of “foreknowledge” in aiding-andabetting liability). A “fence” who had no advance knowledge of the plan to steal the goods he disposes of, for example, is generally not liable for conspiring to steal those goods. See United States v. Solomon, 686 F.2d 863, 876 (11th Cir. 1982); United States v. McGann, 431 F.2d 1104, 1106-07 (5th Cir. 1970). Here, a late-joiner theory would require that the conspirator knew that the computer intrusions that comprise the Section 1030 violation were ongoing, or expected to continue, at the time that he or she joined the conspiracy. With respect to WikiLeaks and Assange, this Office determined the admissible evidence to be insufficient on both the agreement and knowledge prongs. As to agreement, many of the communications between the GRU officers and WikiLeaks-affiliated actors occurred via encrypted chats. Although a conspiracy is often inferred from the circumstances, see Iannelli, 420 U.S. at 777 n.10, the lack of visibility into the contents of these communications would hinder the Office’s ability to prove that WikiLeaks was aware of and intended to join the criminal venture comprised of the GRU hackers. Similar problems of proof existed as to knowledge. While the investigation developed evidence that the GRU’s hacking efforts in fact were continuing at least at the time of the July 2016 WikiLeaks dissemination, see Netyksho Indictment ¶¶ 32, 34, the Office did not develop sufficient admissible evidence that WikiLeaks knew of—or even was willfully blind to—that fact. Cf. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769-70 (2011) (recognizing that willful blindness can be used to prove the knowledge element of an offense). And absent sufficient evidence of such knowledge, the government could not prove that WikiLeaks (or Assange) joined an ongoing hacking conspiracy intending to further or facilitate 177 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) additional computer intrusions. See United States v. Piper, 35 F.3d 611, 615 (1st Cir. 1994) (conspiracy defendant must have “an intent to effectuate the commission of the substantive offense”); see also Ingram v. United States, 360 U.S. 672, 678 (1959) (“Without the knowledge, the intent cannot exist.”) (internal quotation marks and citation omitted). The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279 As explained in Volume I, Section III.D.1, supra, Corsi’s accounts of his interactions with Stone on October 7, 2016 are not fully consistent or corroborated. Even if they were, neither Corsi’s testimony nor other evidence currently available to the Office is sufficient to prove beyond a reasonable doubt that Stone knew or believed that the computer intrusions were ongoing at the time he ostensibly encouraged or coordinated the publication of the Podesta emails. Stone’s actions would thus be consistent with (among other things) a belief that he was aiding in the dissemination of the fruits of an already completed hacking operation perpetrated by a third party, which would be a level of knowledge insufficient to establish conspiracy liability. See State v. Phillips, 82 S.E.2d 762, 766 (N.C. 1954) (“In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime.”) (quoted in Model Penal Code and Commentaries § 5.03, at 442 (1985)). The Office’s determination that it could not charge WikiLeaks or Stone as part of the Section 1030 conspiracy was also informed by the constitutional issues that such a prosecution would present. Under the Supreme Court’s decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), the First Amendment protects a party’s publication of illegally intercepted communications on a matter of public concern, even when the publishing parties knew or had reason to know of the intercepts’ unlawful origin. Id. at 517-518. Any effort by WikiLeaks to invoke Bartnicki would raise an initial question whether, as a foreign actor, WikiLeaks is entitled to claim the protections of the First Amendment. Compare DKT Mem’l Fund Ltd. v. Agency for Int’l Dev., 887 F.2d 275, 284 (D.C. Cir. 1989) (stating that “aliens beyond the territorial jurisdiction of the United States are generally unable to claim the protections of the First Amendment”), with Lamont v. Postmaster General, 381 U.S. 301, 305 (1965) (invalidating a statute based on the First Amendment rights of the addressees to whom the material was directed); id. at 308 (Brennan, J., concurring). But assuming that a First Amendment defense is available to WikiLeaks (or that Stone raised one), a court could conclude that Bartnicki’s holding applies equally to actors such as WikiLeaks and Stone on the ground that they published or caused the publication of previously hacked materials, without participating directly “in the initial illegality” of the computer intrusions, see 532 U.S. at 529. The government might be able to distinguish Bartnicki on the ground that, under the latejoiner principles of conspiracy law described above, WikiLeaks and Stone were complicit in the computer intrusions. That contention would succeed only if qualifying as a conspirator under latejoiner principles establishes sufficient participation under Bartnicki, a question that the decision itself does not resolve. Regardless, success would also depend upon evidence of WikiLeaks’s and Stone’s knowledge of ongoing or contemplated future computer intrusions—the proof that is 1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office. 178 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) cmTently lacking. The absence of evidence as to knowledge, in short, would both hinder the government's ability to prove conspiracy liability and also potentially provide a First Amendment defense. Therefore, the Office did not seek charges against WikiLeaks, Assange, or Stone for paiiicipat ing in the computer-intrnsion conspiracy alleged in Count One of the Netyksho indictment. 2. Potential Section 1030 Violation By[JPl@JJPltll(!j] (b)(6)/ (b)(7)(C) -2 The Office also considered whether (b) (6), (b) (7)(C) intentionally accessed a protected computer without authorization, in violation of 18 U.S .C. § 1030(a)(2)(C) & (c)(2)(A) (providing penalties for "[w]hoever .. . intentionally accesses a computer without authorization or exceeds authorized access, and thereb obtains . . . infonn ation from an rotected com uter" . The conduct at issue was The facts known to the Office likel sufficed to establish each element of a misdemeanor C . (b)(6)/ (b)(7)(C)-2 a saine course of conduct, and a so suggeste t at acted "intentionally." See Unite States v. Willis, 476 F.3d 1121, 1125 n.1 (10th Cir. 2007) (explaining that the 1986 amendments to Section 1030 reflect Congress's desire to reach '" intentional acts of unauthorized access- rather than mistaken, inadvertent or cai·eless ones"') (quoting S. Rep. 99-432, at 5 (1986)). In addition, the likely qualifies as a "protected" one under the statute, which reaches "e~ cbve;;; omputers with Internet access." United States v. Nosal 676 F.3d 854 ~ Cir. 2012) (en bane). And likely sufficed to demonstrnte · · · "o tame m 01m at10n" ·om e computer, smce the word "obtain" in this provision "includes mere observation of the data," S. Rep. 99-432, at 6, even without an attempt to copy or download it. co mputer[Wel~JtPn; a Applying the Principles of Federal Prosecution, however, the Office dete1mined that prosecution of this potential violation was not waiTanted. Those Principles instru ct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be im osed if the successful. Justice Manual 9-27.230. (b)(6)/ (b)(7)(C)-2 That fact,. others, would make it difficult to prove that · acted to fuiiher any crime or tort or · · · obtained infonnation valued at more than $5,000-w hich ai·e the kind of circumstances t at can ti·i er felon unishment under the sta.tute. See 18 U.S .C. 1030 c 2 B . (b) (6), (b) (7)(C) .. , (b) (6), (b) (7)(C) • • 179 . . t I · t • I I · I I I · I . U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues. iii. Difficulties in Valuing Promised Information The Office would also encounter difficulty proving beyond a reasonable doubt that the value of the promised documents and information exceeds the $2,000 threshold for a criminal violation, as well as the $25,000 threshold for felony punishment. See 52 U.S.C. § 30109(d)(1). The type of evidence commonly used to establish the value of non-monetary contributions—such as pricing the contribution on a commercial market or determining the upstream acquisition cost or the cost of distribution—would likely be unavailable or ineffective in this factual setting. Although damaging opposition research is surely valuable to a campaign, it appears that the information ultimately delivered in the meeting was not valuable. And while value in a conspiracy may well be measured by what the participants expected to receive at the time of the agreement, see, e.g., United States v. Tombrello, 666 F.2d 485, 489 (11th Cir. 1982), Goldstone’s description of the offered material here was quite general. His suggestion of the information’s value—i.e., that it would “incriminate Hillary” and “would be very useful to [Trump Jr.’s] father”—was nonspecific and may have been understood as being of uncertain worth or reliability, given Goldstone’s lack of direct access to the original source. The uncertainty over what would be delivered could be reflected in Trump Jr.’s response (“if it’s what you say I love it”) (emphasis added). Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting. c. Application to WikiLeaks and Roger Stone The Office also considered whether WikiLeaks and anyone connected to the Trump Campaign had liability in connection with WikiLeaks’s months-long releases of stolen emails and other documents, possibly with the aim of influencing the 2016 presidential election, described in Volume I, Section III, supra. The Office explored whether WikiLeaks’s actions could constitute a prohibited “expenditure,” 52 U.S.C. § 30121(a)(1)(C), which “includes” “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office,” 52 U.S.C. § 30101(9)(A)(i), but excludes, among other things, “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate; news stories and non-partisan get-out-the-vote “activities.” 52 U.S.C. § 30101(9)(B)(i) and (ii). The Office concluded that substantial questions exist about whether the release of emails could be treated as an “expenditure,” whether the government could establish willfulness, and 188 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) whether prosecution of this conduct would be subject to a First Amendment defense. In combination, those factors created sufficient doubt that the Office could obtain and sustain a conviction based on WikiLeaks’s conduct. There is also insufficient evidence at the present time to establish beyond a reasonable doubt that Roger Stone or any other persons associated with the Campaign coordinated with WikiLeaks on the release of the emails, which alone would preclude prosecution of them for the WikiLeaks-related conduct even if WikiLeaks had violated campaignfinance law. Finally, and in any event, the Office took into consideration several of the legal uncertainties discussed above with respect to June 9. i. Questions Over Whether WikiLeaks’s Activities Are Covered by the Campaign-Finance Laws Substantial questions exist about whether WikiLeaks’s activity in posting documents is covered by the campaign-finance laws. Threshold questions include whether stolen emails constitute “anything of value” as used in the statute defining the term “expenditure,” and whether the posting of documents online qualifies as a “gift” or as any of the other types of transactions described in that statute (“purchase, payment, distribution, loan, advance, deposit”). Assuming that they do, two other hurdles would pose challenges. First, in Bluman, a three-judge court held that the ban on foreign-national expenditures (in contrast to contributions or donations) is limited to “expenditures to expressly advocate the election or defeat of a political candidate,” i.e., “‘express campaign speech’ or its ‘functional equivalent.’” 800 F. Supp. 2d at 284 (quoting FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 456 (2007) (WRTL) (opinion of Roberts, C.J.)). That standard would require more than that the posted emails were intended to influence elections and would have that effect. WRTL, 551 U.S. at 465-470; see id. at 470-475. Rather, they must be “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id. at 469-470; cf. 11 C.F.R. § 100.22 (defining the term “expressly advocating” in the campaign-finance laws as using certain electoral words or phrases or “[w]hen taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s)”). If the standard articulated in that decision governs, then it is unlikely that the distribution of emails, divorced from messaging that expressly advocates the election or defeat of a candidate—through particular magic words or the functional equivalent—would satisfy it. Second, pursuant to its authority to “prescribe rules, regulations, and forms to carry out” the campaign-finance laws, 52 U.S.C. § 30111(a)(8); see Buckley v. Valeo, 424 U.S. 1, 110 (1976) (per curiam), the FEC has promulgated regulations that exclude most “internet activity” from the category of expenditures. 11 C.F.R. § 100.155; see also 11 C.F.R. § 100.94 (similar for “contributions”). That regulation generally excludes posting, hosting, blogging, and similar internet activities, where they are “uncompensated.” Id. That exclusion may well cover WikiLeaks’s activities. 189 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) ii. Willfulness As discussed, to establish a criminal campaign-finance violation, the government must prove that the defendant acted “knowingly and willfully.” 52 U.S.C. § 30109(d)(1)(A)(i). That standard requires proof that the defendant knew generally that his conduct was unlawful. Election Offenses 123. Given the uncertainties noted above, the “willfulness” requirement would pose a substantial barrier to prosecution. iii. Constitutional Considerations Finally, the First Amendment could pose constraints on a prosecution. Even if WikiLeaks, as a non-citizen abroad, could not assert First Amendment rights, see DKT Mem’l Fund Ltd. v. Agency for Int’l Dev., 887 F.2d 275, 284 (D.C. Cir. 1989); Bahlul v. United States, 840 F.3d 757, 797 (D.C. Cir. 2016) (en banc) (Millett, J., concurring) (“no governing precedent extends First Amendment protection to speech undertaken by non-citizens on foreign soil”), WikiLeaks could argue that the transmission of information into the United States that did not involve express advocacy implicates the First Amendment rights of American audiences. See Lamont v. Postmaster General, 381 U.S. 301, 305 (1965) (treating limits on mailing propaganda into the United States as “a limitation on the unfettered exercise of the addressee’s First Amendment rights”); see also Bluman, 800 F. Supp. 2d at 290 (noting that the court’s interpretation of the foreign-expenditure ban “does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues”). Assuming that no coordination with the Campaign occurred, a criminal prosecution of overseas actors providing non-express-advocacy information to American listeners would likely be difficult. iv. Analysis as to Roger Stone The Office also considered whether Roger Stone could be prosecuted for any direct or indirect contacts with WikiLeaks about its release of hacked emails for the purpose of influencing the presidential election, and whether any coordination between Stone and WikiLeaks would affect WikiLeaks’s criminal exposure. If WikiLeaks’s release of documents were conducted in coordination with Stone (or others associated with the Trump Campaign), the activity would arguably constitute a “contribution,” rather than an “expenditure.” Cf. 52 U.S.C. § 30116(a)(7)(B)(i) (“For purposes of this subsection . . . expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.”). That characterization would potentially render Bluman’s express-advocacy limitation inapplicable (because Bluman had applied that interpretation only to expenditures made independent of a campaign) and would significantly alleviate the First Amendment concerns identified above (because coordinated election activity would implicate the compelling interest in preventing foreign participation in the U.S. political process and in avoiding quid pro quo corruption or its appearance). See Citizens United v. FEC, 558 U.S. 310, 357 (2010); FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 444-60 (2001); Bluman, 800 F. Supp. 2d at 288. 190 U.S. Department of Justice Attorney Work Product // May Contain Material Protected Under Fed. R. Crim. P. 6(e) The Office did not pursue that theory, however, because the investigation did not identify sufficient credible evidence that would establish that Stone coordinated with WikiLeaks or that any contacts with WikiLeaks were attributable to the Campaign. See Volume I, Section III.D.1, supra. While the Office cannot exclude the possibility of coordination between Stone and WikiLeaks or that additional evidence could come to light on that issue, the investigation did not obtain admissible evidence likely to meet the government’s burden to prove facts establishing such coordination beyond a reasonable doubt. In any event, even if the Office could establish coordination, arguments premised on a showing of coordination would not address the questions discussed above about whether electronic documents posted on the internet are things of value covered by the campaign-finance laws. Nor would it address the FEC’s regulation providing that uncompensated internet activity is not a contribution, even if done in coordination with a campaign, see 11 C.F.R. § 100.94. Those reasons for questioning the applicability of the campaign-finance laws to the facts at issue would similarly make it difficult to establish the general knowledge of illegality necessary to prove a willful violation. See Election Offenses 123. 4. False Statements and Obstruction of the Investigation The Office determined that certain individuals associated with the Campaign lied to investigators about Campaign contacts with Russia and have taken other actions to interfere with the investigation. As explained below, the Office therefore charged some U.S. persons connected to the Campaign with false statements and obstruction offenses. a. Overview Of Governing Law False Statements. The principal federal statute criminalizing false statements to government investigators is 18 U.S.C. § 1001. As relevant here, under Section 1001(a)(2), it is a crime to knowingly and willfully “make[] any materially false, fictitious, or fraudulent statement or representation” “in any matter within the jurisdiction of the executive . . . branch of the Government.” An FBI investigation is a matter within the Executive Branch’s jurisdiction. United States v. Rodgers, 466 U.S. 475, 479 (1984). The statute also applies to a subset of legislative branch actions—viz., administrative matters and “investigation[s] or review[s]” conducted by a congressional committee or subcommittee. 18 U.S.C. § 1001(c)(1) and (2); see United States v. Pickett, 353 F.3d 62, 66 (D.C. Cir. 2004). Whether the statement was made to law enforcement or congressional investigators, the government must prove beyond a reasonable doubt the same basic non-jurisdictional elements: the statement was false, fictitious, or fraudulent; the defendant knew both that it was false and that it was unlawful to make a false statement; and the false statement was material. See, e.g., United States v. Smith, 831 F.3d 1207, 1222 n.27 (9th Cir. 2017) (listing elements); see also Ninth Circuit Pattern Instruction 8.73 & cmt. (explaining that the Section 1001 jury instruction was modified in light of the Department of Justice’s position that the phrase “knowingly and willfully” in the statute requires the defendant’s knowledge that his or her conduct was unlawful). In the D.C. Circuit, the government must prove that the statement was actually false; a statement that is misleading but “literally true” does not satisfy Section 1001(a)(2). See United States v. Milton, 8 F.3d 39, 45 191