'Hacking Is The Crime. The President Didn't Hack,' Says Hack

Is it possible that Rudy Giuliani was a terrible lawyer all along?

Rudy Giuliani (Photo by Rob Kim/Getty)

This morning, Rudy Giuliani continued his effort to eke out another 15 minutes of fame with another disastrous television interview that only succeeds in undermining his client’s eventual defense. Speaking with CNN, Giuliani offered his latest ever-shifting crackerjack legal insight on the White House’s legal woes:

Colluding about Russians ― I’m not sure that’s even a crime. The hacking is the crime. The president didn’t hack.

He was even more sure about collusion when he spoke with the folks from Fox & Friends:

I’ve been sitting here looking at the federal code, trying to find ‘collusion’ as a crime. Collusion is not a crime.

That’s true! “Collusion” isn’t a crime. However, unfortunately for Rudy, “conspiracy” is very much a crime and you just need a copy of Roget’s Thesaurus to know that’s a problem for his latest legal defense. It’s where the fact that Donald Trump didn’t personally sit in front of a keyboard and crack into the DNC falls apart. Because if hacking is a crime as Rudy implies, meeting with the hackers and joining in would be a crime.

And Rudy is right. It’s 18 U.S. Code § 1030(a):

Sponsored

(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value….

And, in case the Russians had already completed their hacking when the Trump family learned of it, it’s possible to join the conspiracy after the fact.

Just for kicks, let’s revisit 18 U.S.C. § 371:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Beyond the hacking, it’s not a difficult leap to assume that “a foreign power undermining the integrity of the election by giving aid to one of the candidates” is a crime against the United States. But, as it turns out, that’s not even an uphill battle for a prosecutor because we actually have a statute making that a crime:

Sponsored

(a) Prohibition

It shall be unlawful for—

(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434(f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

Everything that’s been publicly disclosed about what the Russians were offering certainly would qualify as a “thing of value” under this statute.

That’s 2 U.S.C. § 441e(a), by the way, if Rudy’s looking to interrupt his busy TV schedule to do some actual legal research on behalf of his client. It’s one of those parts of the McCain-Feingold Act that the Supreme Court hasn’t gotten around to gutting. Yet!

In fact, this law has been affirmatively held up in the case of Bluman v. FEC:

We read these cases to set forth a straightforward principle: It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.

Coincidentally, that’s an opinion from Judge Brett Kavanaugh, so if this whole affair ever gets to the Supreme Court, he’d have to perform some serious acrobatics to endorse Rudy’s pet theory.

How does Giuliani still have a job? He started out by nearly killing the Muslim ban by going on television and telling everyone that it was, in fact, a Muslim ban. Then he called Michael Cohen an “honest, honorable lawyer” before Cohen seemingly flipped, forcing Giuliani to declare Cohen “a pathological liar.” Now he’s more or less admitting to collusion but saying that’s not really a crime… even though it is.

Some people think Rudy’s lost his touch in his old age. That’s certainly possible. But Rudy Giuliani earned his fame as a lawyer by securing convictions at the height of the “you can indict a ham sandwich” era, taking advantage of every bit of the federal government’s massive advantages in federal court. Is it possible that he never actually understood the law in the first place?

We’re getting some compelling television evidence of that.


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.