The best antidote to the problem of foreign election interference is sunshine – inform the public about the nature and content of the foreign election interference. Criminal prosecutions play an important role in disclosing information to the public, as one part of a larger strategy of depriving foreign election interference of its effectiveness. This chapter focuses on the role that criminal prosecutions played during the Mueller investigation into Russian interference and how similar criminal investigations might be harnessed as a general response to election interference. Section 1 discusses how criminal investigations can help to keep the public informed about critical social problems – and the limitations of using the criminal justice system as a disclosure and transparency regime. Section 2 then analyzes the missteps made by the Obama Administration in failing to use criminal investigations to provide meaningful disclosure to the public about the scope of Russian information operations conducted over social media platforms. Section 3 focuses on recent changes to the Justice Department policies regarding disclosure of foreign influence operations. Finally, Section 4 looks at structural factors in the intelligence community to understand that community’s hesitation about relying on the criminal justice system, and how this reluctance might be overcome.

Russian interference in the 2016 election was not an isolated event but was, rather, a cluster of related techniques, each of which will be described in this chapter. There is wide agreement in government and intelligence circles about what happened, though the Trump administration has at times stated contradictory things about whether the interference occurred, or contradictory characterizations of the interference. There was: (1) hacking of email accounts and the public release of information stolen from these accounts; (2) social media campaigns, including paid advertisements on Facebook and postings on Twitter engineered by so-called troll farms; and (3) the infiltration of advocacy organizations such as the National Rifle Association, with the goal of influencing the domestic political landscape. These activities raise two important issues that are analyzed in this chapter. First, are the actors who engage in this interference private actors or state agents, and does it make a difference? Second, based on the methods used, what conclusions can be drawn about Russia’s strategic objectives in interfering in the 2016 elections? These questions must be answered in order to answer the fundamental question, i.e., whether election interference violates international law, and if yes, in what way.