Freedom of Speech Implicated As Another Russian National Charged For Interfering with U.S. Elections

The U.S. government has charged another Russian national for meddling in our elections under the catchall charge known as “conspiracy to commit offense or to defraud United States,” a felony punishable by up to five years in prison.

The FBI asserts that since at least 2014, a Russian effort known as “Project Lakhta,” has been engaging in election meddling in the U.S., Europe, and in Russia. They operated by spreading distrust towards political systems and political candidates.

Project Lakhta was primarily funded by Concord Management and Consulting LLC, a Russian entity indicted by Special Counsel Robert Mueller earlier this year, run by an ally of Vladimir Putin.

Elena Khusyaynova, the subject of the new criminal complaint, was the Chief Accountant in Project Lakhta. The Russian National is charged with conspiring with those charged by Mueller for “impairing, obstructing, and defeating the lawful functions” of the DOJ and FEC. In short, she is accused of creating fake social media personas (FBI thanked Facebook and Twitter for their “exceptional cooperation” in this investigation) and creating political memes that were posted on those accounts. Some of the social media accounts had tens of thousands of followers. Khusyaynova is also accused of promoting certain political candidates, including organizing rallies for those candidates.

Khusyaynova and the conspirators are accused of discussing topics such as immigration, gun control, the Second Amendment, the Confederate flag, race relations, LGBT issues, the Women’s March, and the NFL national anthem, the shootings of church members in Charleston, the shooting in Las Vegas, the Charlottesville “Unite the Right” rally, police shootings of African-American men, and the current U.S. presidential administration. The conspirators wrote on these topics from varied and sometimes opposing perspectives, just to stir the pot. The criminal complaint uses terminology such as “socially divisive” to characterize the alleged conduct.

The essence of the FBI accusations: foreign nationals cannot participate in political speech with the intent of dividing Americans and interfering with U.S. elections.

“Our foreign adversaries continue their efforts to interfere in our democracy by creating social and political division,” stated FBI Director Christopher Wray. Assistant Attorney General for National Security, John C. Demers, advised that the U.S. government will not stand for such interference. “Americans disagree in good faith on all manner of issues, and we will protect their right to do so. Unlawful foreign interference with these debates debases their democratic integrity, and we will make every effort to disrupt it and hold those involved accountable.”

But the Bill of Rights and freedom of speech are not limited to citizens of the United States, nor are they limited to those who may lawfully participate in the voting process. Anyone visiting the United States may speak freely … until now.

The First Amendment of the Bill of Rights states, in relevant part:

Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. conspiracy law states, in relevant part:

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.

Under the U.S. government’s interpretation of Congress’ conspiracy law, foreign nationals on U.S. soil should not rely on First Amendment protections — a direct violation of the First Amendment, right?

Unfortunately, it’s more complicated than that. This is where campaign finance lawcomes into play. U.S. campaign finance law expressly prohibits financial contributions from, and expenditures by, foreign nationals in U.S. elections. These laws have been challenged on First Amendment grounds but have been upheld repeatedly by the Supreme Court. The government alleged that Khusyaynova spent around $35 million on behalf of the conspiracy, implying a violation of FEC rules. The government also alleged noncompliance with certain federal expenditure requirements for foreign nationals.

So does Khusyaynova’s conduct fit into the category of free speech or campaign finance law violation? A jury will decide soon enough. Khusyaynova is awaiting trial in the United States District Court for the Eastern District of Virginia, in Alexandria. A jury from this jurisdiction recently found Paul Manafort guilty of one-half of the charges he was facing.

The Project Lakhta FBI investigation was led by a Special Agent assigned to the Washington DC Field Office, responsible for investigations of foreign influence operations and other national security matters with a cyber nexus. A prosecutor assigned to this matter cautioned that more indictments may follow. “Federal law enforcement authorities will work aggressively to investigate and prosecute the perpetrators of unlawful foreign influence activities, and that we will not stand by idly while foreign actors obstruct the lawful functions of our government.”