Re: U.S. Breaks Up Alleged Russian Spy Ring, Ten Arrested

Excellent question, Dan. You are startled by the same thing that took me aback in my first encounter with investigating terrorism 17 years ago: the seeming disconnect between some crimes and their punishment. Usually, it runs in the other direction – i.e., the potential (statutory) sentence for a crime is more serious than the offense. (E.g., the potential penalty for handing a marijuana joint to the guy next to you at the concert is 20 years in the slammer.) But sometimes it goes the other way. Thus I learned in 1993 that if a terrorist cell succeeded in carrying out a bombing, we had adequate penalties for that. But if we managed to stop them from doing so, such that they had only conspired to bomb but had not succeeded in executing the plan, the penalty was only a max five years in jail, even if they had been trying to kill thousands of people.

That's because there was no federal bombing conspiracy statute. Therefore, a bomb plot (as opposed to a bombing) had to be charged under the “catch-all” federal conspiracy statute (18 U.S.C. Sec. 371) which makes a conspiracy to commit “any offense against the United States” punishable by up to five years' imprisonment.* By contrast, many statutes targeting specific, serious crimes – e.g., racketeering and narcotics trafficking – have their own conspiracy provisions which punish agreements to violate the law just as harshly as substantive violations of the law. When a prosecutor doesn't have that, he is stuck with charging Section 371.

Now, if we look at what's being called the Russian “spy ring” we see in the charges an ironic absence of espionage accusations. I'm not talking here about what we might colloquially call “espionage.” I'm speaking strictly about “espionage” the statutory legal offense. Under federal law, espionage offenses (18 U.S.C. Sec. 792, et seq.) involve purloining classified information – and, to be even more narrow, national defense information. Like other serious offenses, espionage crimes have conspiracy provisions that punish plots as the equivalent of completed acts of espionage.

Espionage is the most serious crime that can be committed by a foreign agent, but it is not the only one. Obviously, we want to know everyone in our country who is acting on behalf of a foreign country, even if what they are doing is totally benign. Thus, diplomats and consular officials present their credentials to the President and the State Department, while foreign agents of lesser status are required to register with the Justice Department. If you are acting on behalf of a foreign country in any way – even if you are not stealing our classified information – and you fail to register, that is a crime, punishable by up to ten years' imprisonment under Section 951 of the federal penal code (i.e., Title 18).

Section 951 does not have its own conspiracy provision. Therefore, if a group of people conspire to act as agents of a foreign power, and their conduct does not rise to the level of espionage, their conspiracy can be charged only under the catch-all conspiracy provision, Sec. 371 – potential penalty zero-to-five years.

That's why the penalties seem so out of whack here. Money laundering has been considered a serious crime since the 1980s because it is basic to any successful narcotics or organized crime enterprise, so it has harsh penalties, including its own very severe conspiracy provision. So, even though the sexy thing for the media about this Russian case is the spying, the money laundering is where the penalties are … at least for now.

I say that because, so far, we only have the arrest complaint. As I've previously explained, in connection with the arrest of Faisal Shahzad (the would-be Times Square bomber), complaint-affidavits are not formal charging instruments to which pleas of guilty or not-guilty are entered. They just explain to the court why there is enough probable cause of some crime(s) to justify making arrests. The next step in the case will likely be the filing of a grand-jury indictment. That is a formal charging instrument, and in it I would expect that, in addition to foreign-agent conspiracy, the Justice Department will accuse defendants of lots of substantive offenses, including substantive acts committed as unregistered foreign agents. And if enough evidence is developed from confessions and other investigation to warrant espionage charges, you'll see those counts at that point, too. We're at least a couple of weeks away from that.

_________

* [UPDATE:] Sorry to add to this already too long post, but I should have noted that this anomaly was fixed in 1996 when Congress and the Clinton administration dramatically overhauled counterterrorism law.