Notes on What May be Literally Criminal In Trump’s Call for Russia to Hack Clinton’s Email

Today, speaking in Florida, Donald Trump said, “They probably have 33,000 of [Hillary Clinton’s] emails too. … Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

Politics aside, what if anything, is legally suspect about making this statement? When it comes to crime, the first place to look is state law, because relatively few crimes are federal ones.

Florida has a statute regarding “Offenses against users of computers, computer systems, computer networks, and electronic devices”. Fla. Stat. § 815.06. It includes the following provision in its list of specific offenses against a computer user: “(f) Engages in audio or video surveillance of an individual by accessing any inherent feature or component of a computer, computer system, computer network, or electronic device, including accessing the data or information of a computer, computer system, computer network, or electronic device that is stored by a third party.” Fla. Stat. § 815.06 (2) (f). The statute classifies any such offense as felony, ranging from first degree to third degree depending upon precise circumstances. Fla. Stat. § 815.06 (3)(a)-(c).

For complicated reasons not worth going into here, Florida’s current law treats those engaged in what we might semi-colloquially describe as aiding and abetting before or after the fact in exactly the same way the same way as it treats a “principal” engaged in the underlying offense. Here is the Florida statute defining who is a principal when it comes to felonies: “Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.” Fla. Stat. § 777.011.

It is a felony in Florida to hack somebody’s email. It is equally a felony to aid or counsel somebody else to hack somebody’s email. But, Florida courts have made it clear that to legally establish that somebody has aided, abetted, or counseled, the State has to prove that a defendant intended that the crime be committed and have done some act to assist another in committing the crime.

Personally, I don’t think Donald Trump was just being jocular when he called for Russia to hack Hillary Clinton’s emails, so I think intent is there. What is harder to know is whether he has done anything that would constitute actual assistance to Russia in doing this. What this very preliminary legal analysis shows, however, is that Donald Trump, ranting and rambling, comes within the orbit of committing a felony in the State of Florida.