This week brought news that the U.S. attorney in Brooklyn, New York, is investigating whether Ukrainian officials used Rudy Giuliani to interfere in the 2020 presidential election.
We have known for a while that the neighboring U.S. attorney in Manhattan is investigating Giuliani for potential violations of the Foreign Agents Registration Act. In April, the FBI conducted searches at Giuliani’s home and office as part of that investigation in the Southern District of New York. The newly disclosed probe in the Eastern District of New York appears to view Giuliani not as a target but as a pawn.
The newly disclosed probe in the Eastern District of New York appears to view Giuliani not as a target but as a pawn.
The New York Times reported the investigation is focused on suspected efforts by Ukrainian officials to spread unsupported claims of corruption against then-candidate Joe Biden through channels that included Giuliani, who was serving as then-President Donald Trump’s personal attorney. Giuliani traveled to Ukraine in 2019 and met with officials as part of his effort to obtain disparaging information about Biden. The Times says Giuliani continued to “vouch” for Andriy Derkach, a Ukrainian member of parliament, even after Trump’s Treasury Department imposed sanctions on Derkach for election interference and accused him of being “an active Russian agent.”
While the reporting indicates the new investigation focuses on efforts to sway the November election in favor of Trump, it should not be seen as a partisan effort by Biden’s Justice Department. In fact, the investigation reportedly began in the waning months of the Trump administration.
Regardless of which candidate may have benefitted from such an attack, any effort by a foreign government to alter the outcome of an election is an unwelcome intrusion on our democracy. American voters should decide the outcome of American elections.
Efforts to interfere in the outcome of a democratic election are extremely serious. They can help elect candidates based on skewed perceptions created by a hostile foreign adversary to advance the adversary’s own purposes. Foreign agents manipulate voters into forming opinions by pushing content designed to elicit an emotional negative response or to spread lies that will harm a candidate’s reputation.
Special counsel Robert Mueller alleged that the goal of Russia in its 2016 attack on our election was to spread “distrust towards the candidates and the political system in general.” In other words, foreign adversaries are attacking democracy itself. This kind of activity is sometimes referred to as election “meddling,” but that term tends to minimize the damage it inflicts. We should use the term that Mueller alleged the Russians themselves used: “information warfare.”
As foreign adversaries increase their efforts to use disinformation to dupe voters, criminal prosecution can be an important weapon to defend the integrity of our elections. One sometimes overlooked contribution Mueller and his team made was their indictment against Russian officials for election interference. Sometimes the significance of these charges is lost in the commotion surrounding Trump‘s claims of partisan “witch hunts,” but they provide a playbook for prosecutors to combat election attacks.
In that case, Mueller and his team used an interesting legal theory. The indictment alleged that the Internet Research Agency and others conspired to defraud the United States by impairing, obstructing and defeating the lawful functions of the Federal Election Commission and the departments of Justice and State.
The Russian operatives did so by using social media platforms to pose as American activists. The indictment lays out that they pretended to support issues and groups across the political spectrum — the Black Lives Matter movement, border security, Christian voters, Muslim groups and political parties and organizations in Texas and Tennessee.
Their efforts promoted Trump and disparaged his political opponent, Hillary Clinton, the indictment said. Their posts sought to suppress Black voters from casting ballots and to encourage voting for third-party candidates. They also used false U.S. personas to communicate with unwitting Americans to spread disinformation and even to organize campaign rallies. Because the United States has no extradition treaty with Russia, the Internet Research Agency has not appeared in court to face the charges, which remain pending. What these efforts had in common was their deceit. And it is deceit that prosecutors often focus on when charging various types of fraud. By spending money on advertising and campaign rallies without reporting it to the FEC, the indictment alleged, the defendants had conspired to defraud the United States by interfering with the work of that agency. Similarly, it alleged they interfered with the work of the Department of Justice, with whom agents of foreign entities must register before engaging in political activity. The perpetrators did not reveal their foreign origins, of course, because posing as Americans was the key to success of the scheme. Now, we may see a similar theory at work in the Brooklyn investigation. If Derkach or other Ukrainians were using Giuliani as a conduit to spread disinformation to influence the U.S. government or the media to sway the election, then they may be guilty of the same offenses Mueller alleged the Internet Research Agency committed. The evidence may show that they violated FARA by acting as unregistered foreign agents seeking to influence the outcome of the election, or they may have conspired to interfere with the FEC’s administration of laws to prevent foreign influence in elections by using Giuliani as their front man. During the Cold War, communists used the term “useful idiot” to describe people who could be used to spread propaganda. Maybe the new term should be “Giuliani.”
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
