¹ The statement is described in more detail below. See infra text at notes 33–34.

² See infra notes 52–56 and corresponding text.

³ See infra notes 89–97 and corresponding text.

⁴ See infra notes 66–71, 117–27 and corresponding text.

⁵ See infra notes 72–78 and corresponding text.

⁶ Ellen Nakashima, Russian Government Hackers Penetrated DNC, Stole Opposition Research on Trump, Wash. Post (June 14, 2016), at https://www.washingtonpost.com/world/national-security/russian-government-hackers-penetrated-dnc-stole-opposition-research-on-trump/2016/06/14/cf006cb4-316e-11e6-8ff7-7b6c1998b7a0_story.html. The DNC had apparently become aware of the hack in late April 2016. See id.

⁷ See Dmitri Alperovitch, Bears in the Midst: Intrusion into the Democratic National Committee, CrowdStrike (June 15, 2016), at https://www.crowdstrike.com/blog/bears-midst-intrusion-democratic-national-committee. According to CrowdStrike, Fancy Bear had infiltrated the network in April 2016, and the DNC discovered this breach. See Nakashima, supra note 6. Cozy Bear, on the other hand, gained access to the network in summer 2015, and had been monitoring the Democratic National Committee's (DNC) email and chat communications since that time. See id.

⁸ Alperovitch, supra note 7. According to CrowdStrike, Russia's three main intelligence services have a “highly adversarial relationship” with one another. They

Id.

⁹ Charlie Savage & Nicole Perlroth, Is D.N.C. E-mail Hacker a Person or a Russian Front? Experts Aren't Sure, N.Y. Times (July 27, 2016), at http://www.nytimes.com/2016/07/28/us/politics/is-dnc-email-hacker-a-person-or-a-russian-front-experts-arent-sure.html (discussing Guccifer 2.0's connection with Russia's Main Intelligence Directorate (GRU)). A subsequent media report indicated that Guccifer 2.0 was one of two “outlets” created by Fancy Bear, a “G.R.U.-controlled unit,” in order to make the hacked documents public. See David E. Sanger & Scott Shane, Russian Hackers Acted to Aid Trump in Election, U.S. Says, N.Y. Times (Dec. 9, 2016), at https://www.nytimes.com/2016/12/09/us/obama-russia-election-hack.html.

¹⁰ Guccifer2, Guccifer 2.0 DNC's Servers Hacked by a Lone Hacker, Guccifer 2.0 (June 15, 2016), at https://guccifer2.wordpress.com/2016/06/15/dnc/.

¹¹ Alperovitch, supra note 7.

¹² U.S. Dep't of State, Daily Press Briefing (June 14, 2016), at https://2009-2017.state.gov/r/pa/prs/dpb/2016/06/258467.htm (“I[’ve] just seen these recent press reports. I don't have anything to corroborate them. I'd refer you to the Democratic National Committee and to law enforcement authorities to speak to … these reports.”); White House Press Release, Press Briefing by Press Secretary Josh Earnest (June 15, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/06/15/press-briefing-press-secretary-josh-earnest-61516 (“[F]or any sort of discussion about a federal government response, I'd refer you to the FBI… . And I'm just not able to comment on this in much detail because I don't weigh into even potential law enforcement or international security investigations.”).

¹³ Nakashima, Russian Government, supra note 6.

¹⁴ Andrew Roth, Russia Denies DNC Hack and Says Maybe Someone “Forgot the Password,” Wash. Post (June 15, 2016), at https://www.washingtonpost.com/news/worldviews/wp/2016/06/15/russias-unusual-response-to-charges-it-hacked-research-on-trump.

¹⁵ See Tom Hamburger & Karen Tumulty, WikiLeaks Releases Thousands of Documents About Clinton and Internal Deliberations, Wash. Post (July 22, 2016), at https://www.washingtonpost.com/news/post-politics/wp/2016/07/22/on-eve-of-democratic-convention-wikileaks-releases-thousands-of-documents-about-clinton-the-campaign-and-internal-deliberations.

¹⁶ David E. Sanger & Eric Schmitt, Spy Agency Consensus Grows That Russia Hacked D.N.C., N.Y. Times (July 26, 2016), at http://www.nytimes.com/2016/07/27/us/politics/spy-agency-consensus-grows-that-russia-hacked-dnc.html. The founder of WikiLeaks, Julian Assange, has claimed that the “Russian government is not the source.” Adam Entous, Ellen Nakashima & Greg Miller, Secret CIA Assessment Says Russia Was Trying to Help Trump Win White House, Wash. Post (Dec. 9, 2016), at https://www.washingtonpost.com/world/national-security/obama-orders-review-of-russian-hacking-during-presidential-campaign/2016/12/09/31d6b300-be2a-11e6-94ac-3d324840106c_story.html; see also infra note 109 and corresponding text. Yet, according to media reports, intelligence agencies identified individuals connected to the Russian government who provided WikiLeaks with the hacked documents. See Entous, Nakashima & Miller, supra.

¹⁷ Sanger & Schmitt, supra note 16.

¹⁸ Id.

¹⁹ President Obama on Russian DNC Hack Involvement: “Anything's Possible,” NBC News (July 26, 2016), at http://www.nbcnews.com/nightly-news/video/president-obama-on-russian-dnc-hack-involvement-anything-s-possible-732675139636.

²⁰ U.S. Dep't of State Press Release, John Kerry, Press Availability in Vientiane, Laos (July 26, 2016), available at https://2009-2017.state.gov/secretary/remarks/2016/07/260475.htm.

²¹ White House Press Release, Press Briefing by Press Secretary Josh Earnest (July 28, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/07/28/press-briefing-press-secretary-josh-earnest-72816.

²² White House Press Release, Press Briefing by Press Secretary Josh Earnest (Sept. 15, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/09/15/press-briefing-press-secretary-josh-earnest-91516.

²³ Ministry of Foreign Aff. of the Russ. Fed'n Press Release, Foreign Minister Sergey Lavrov's Answer to a Media Question Before the Meeting with the US Secretary of State John Kerry, Vientiane (July 26, 2016), at http://www.mid.ru/en/web/guest/meropriyatiya_s_uchastiem_ministra/-/asset_publisher/xK1BhB2bUjd3/content/id/2370461.

²⁴ Ministry of Foreign Aff. of the Russ. Fed'n Press Release, Deputy Foreign Minister Sergey Ryabkov Interviewed by Mezhdunarodnaya Zhizn Magazine (Aug. 10, 2016, 7:44 PM), at http://www.mid.ru/en/web/guest/nota-bene/-/asset_publisher/dx7DsH1WAM6w/content/id/2386924.

²⁵ President of Russ. Press Release, Interview to Bloomberg (Sept. 5, 2016), at http://en.kremlin.ru/events/president/news/52830.

²⁶ See Joseph Menn, Dustin Volz & Mark Hosenball, Exclusive: FBI Probes Hacking of Democratic Congressional Group – Sources, Reuters (July 29, 2016), at http://www.reuters.com/article/us-usa-cyber-democrats-exclusive-idUSKCN1082Y7; Ellen Nakashima, FBI Probes Suspected Breach of Another Democratic Organization by Russian Hackers, Wash. Post (July 29, 2016), at https://www.washingtonpost.com/world/national-security/fbi-probes-suspected-breach-of-dccc-computers-by-russian-hackers/2016/07/28/71210464-5536-11e6-b7de-dfe509430c39_story.html. One report claimed that the breach might have begun in June 2016. Menn, Volz & Hosenball, supra.

²⁷ Nakashima, FBI Probes Suspected Breach, supra note 26.

²⁸ See supra note 7 and corresponding text.

²⁹ Nakashima, FBI Probes Suspected Breach, supra note 26; see also Dustin Volz (@dnvolz), Twitter (July 29, 2017, 7:09 AM), at https://twitter.com/dnvolz/status/759028001883451392 (publishing statement by Democratic Congressional Campaign Committee (DCCC) National Press Secretary Meredith Kelly that “[b]ased on the information [the DCCC] ha[s] to date, we've been advised by investigators that this is similar to other recent incidents, including the DNC breach”).

³⁰ Menn, Volz & Hosenball, supra note 26.

³¹ Ellen Nakashima, Russian Hackers Targeted Arizona Election System, Wash. Post (Aug. 29, 2016), at https://www.washingtonpost.com/world/national-security/fbi-is-investigating-foreign-hacks-of-state-election-systems/2016/08/29/6e758ff4-6e00-11e6-8365-b19e428a975e_story.html.

³² Id.

³³ Id.

³⁴ See Dep't of Homeland Sec. & Office of the Dir. of Nat'l Intelligence Press Release, Joint Statement from the Department of Homeland Security and Office of the Director of National Intelligence on Election Security (Oct. 7, 2016), at https://www.dhs.gov/news/2016/10/07/joint-statement-department-homeland-security-and-office-director-national.

³⁵ Id. In addition, after the statement was released, WikiLeaks published hacked emails from John D. Podesta, the campaign chairman for Hillary Clinton. David E. Sanger & Charlie Savage, U.S. Says Russia Directed Hacks to Influence Elections, N.Y. Times (Oct. 7, 2016), at http://www.nytimes.com/2016/10/08/us/politics/us-formally-accuses-russia-of-stealing-dnc-emails.html. Podesta said that he was “not happy about being hacked by the Russians in their quest to throw the election to Donald Trump.” John Podesta (@johnpodesta), Twitter (Oct. 7, 2016, 4:42 PM), at https://twitter.com/johnpodesta/status/784539455453560833. It was not initially clear whether the administration had also attributed this hack to the Russian government. See, e.g., White House Press Release, Press Briefing by Press Secretary Josh Earnest (Oct. 21, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/10/21/press-briefing-press-secretary-josh-earnest-10212016 (“I believe what the intelligence community and the Department of Homeland Security have said is that the kinds of tactics that we saw with regard to the malicious activity on Mr. Podesta's email account are similar to the kinds of tactics that we've seen used in other places… . But I'm not aware of any sort of formal determination that ascribes responsibility to one country or one actor with regard to the malicious activity in Mr. Podesta's email account.”). However, a private security firm later concluded that the same hackers were responsible for both the DNC and Podesta hacks. Nicole Perlroth & Michael D. Shear, Private Security Group Says Russia Was Behind John Podesta's Email Hack, N.Y. Times (Oct. 20, 2016), at https://www.nytimes.com/2016/10/21/us/private-security-group-says-russia-was-behind-john-podestas-email-hack.html. In addition, Director of National Intelligence James Clapper stated on January 5, 2017, that the October 7 statement could be extended to Mr. Podesta's emails, even if it did not include them at the time, based on evidence gathered by the intelligence community after that statement. See Hearing to Receive Testimony on Foreign Cyber Threats to the United States Before the S. Comm. on Armed Servs., 115th Cong. 62 (2017), available at http://www.armed-services.senate.gov/imo/media/doc/17-01_01-05-17.pdf [hereinafter Foreign Cyber Threats Hearing] (statement of James R. Clapper, Jr., Director of Nat'l Intelligence) (“I would have to research the exact chronology of when John Podesta's emails were compromised. But I think, though, that bears on my statement that our assessment now is that is even more resolute than it was with that statement on the 7th of October.”).

³⁶ Sanger & Savage, supra note 35.

³⁷ Ellen Nakashima, Comey Was Concerned Publicly Blaming Russia for Hacks of Democrats Could Appear Too Political in Run-up to Elections, Wash. Post (Nov. 1, 2016), at https://www.washingtonpost.com/world/national-security/fbi-director-james-b-comey-was-concerned-that-publicly-blaming-russia-for-hacks-of-democrats-could-appear-too-political-in-runup-to-nov-8/2016/10/31/b01a8be4-9fab-11e6-8832-23a007c77bb4_story.html.

³⁸ Id.

³⁹ Ministry of Foreign Aff. of the Russ. Fed'n Press Release, Briefing by Foreign Ministry Spokesperson Maria Zakharova, Moscow (Oct. 13, 2016), at http://www.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2498635#11; see also Ministry of Foreign Aff. of the Russ. Fed'n Press Release, Foreign Minister Sergey Lavrov's Interview with Amanpour Program on CNN International, Moscow (Oct. 12, 2016), at http://www.mid.ru/en/web/guest/meropriyatiya_s_uchastiem_ministra/-/asset_publisher/xK1BhB2bUjd3/content/id/2497676 (“Now everybody in the United States is saying that it is Russia which is running the United States presidential debate. It's flattering, … but it has nothing to be explained by the facts. We have not seen a single fact, a single proof… .”).

⁴⁰ Vladimir Putin, President of Russ., Remarks at the 13th Annual Meeting of the Valdai International Discussion Club (Oct. 27, 2016), at http://en.special.kremlin.ru/events/president/transcripts/53151.

⁴¹ White House Press Release, Press Briefing by Press Secretary Josh Earnest (Oct. 27, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/10/27/press-briefing-press-secretary-josh-earnest-10272016. Indeed, even after the election took place, the Director of the National Security Agency, Adm. Michael S. Rogers, reiterated that Russia's hacking was “a conscious effort by a nation-state to attempt to achieve a specific effect.” Wall Street Journal (@WSJ), Twitter (Nov. 15, 2016, 2:02 PM), at https://twitter.com/WSJ/status/798647324687929344.

⁴² White House Press Release, Press Gaggle by Principal Deputy Press Secretary Eric Schultz En Route Atlanta, Georgia (Aug. 1, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/08/01/press-gaggle-principal-deputy-press-secretary-eric-schultz-en-route. See also Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States Relating to International Law, 109 AJIL 419, 419–22 (2015)Google Scholar (describing U.S. response to North Korea hack of Sony Pictures Entertainment); 109 AJIL 880, 880–82 (2015) (describing U.S. response to cyberattacks from China, some of which were characterized as economic espionage).

⁴³ White House Press Release, Press Gaggle by Press Secretary Josh Earnest En Route Greensboro, NC (Oct. 11, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/10/11/press-gaggle-press-secretary-josh-earnest-en-route-greensboro-nc. This statement is consistent with language used by President Obama before the statement was released. See White House Press Release, Remarks by President Obama and Prime Minister Lee of Singapore in Joint Press Conference (Aug. 2, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/08/02/remarks-president-obama-and-prime-minister-lee-singapore-joint-press (“[W]e have provisions in place where if we see evidence of a malicious attack by a state actor, we can impose potentially certain proportional penalties.”).

⁴⁴ Meet the Press - October 16, 2016, NBC News (Oct. 16, 2016), at http://www.nbcnews.com/meet-the-press/meet-press-october-16-2016-n667251.

⁴⁵ Id.

⁴⁶ President of Russ. Press Release, Vladimir Putin Answered Questions from Russian Journalists (Oct. 16, 2016), at http://en.kremlin.ru/events/president/news/53103.

⁴⁷ David Ignatius, In Our New Cold War, Deterrence Should Come Before Détente, Wash. Post (Nov. 15, 2016), at https://www.washingtonpost.com/opinions/global-opinions/in-our-new-cold-war-deterrence-should-come-before-detente/2016/11/15/051f4a84-ab79-11e6-8b45-f8e493f06fcd_story.html; see also David. E. Sanger, Under the Din of the Presidential Race Lies a Once and Future Threat: Cyberwarfare, N.Y. Times (Nov. 6, 2016), at http://www.nytimes.com/2016/11/07/us/politics/under-the-din-of-the-presidential-race-lies-a-once-and-future-threat-cyberwarfare.html. President Obama later stated that he had also raised the issue with President Putin even earlier, in September 2016. See White House Press Release, Press Conference by the President (Dec. 16, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/12/16/press-conference-president [hereinafter Dec. 16 Press Conference] (“[I]n early September, when I saw President Putin in China, I … talk[ed] to him directly and t[old] him to cut it out, and there were going to be some serious consequences if he didn't.”).

⁴⁸ David E. Sanger, White House Confirms Pre-election Warning to Russia over Hacking, N.Y. Times (Nov. 16, 2016), at http://www.nytimes.com/2016/11/17/us/politics/white-house-confirms-pre-election-warning-to-russia-over-hacking.html.

⁴⁹ Ignatius, supra note 47.

⁵⁰ Marina Fang, Lindsey Graham Calls for Senate Investigation into Whether Russia Hacked DNC, Huffington Post (Nov. 15, 2016), at http://www.huffingtonpost.com/entry/russia-dnc-hack-lindsey-graham_us_582bb306e4b0e39c1fa703d5.

⁵¹ Tal Kopan, Top Democrat Calls for Investigation into Russia's Role in US Election, CNN (Nov. 17, 2016), at http://www.cnn.com/2016/11/17/politics/house-oversight-democrat-investigate-russia.

⁵² U.S. Statement on Reliability of Election Results, N.Y. Times (Nov. 26, 2016), at http://www.nytimes.com/2016/11/26/us/politics/us-statement-on-reliability-of-election-results.html.

⁵³ See Entous, Nakashima & Miller, supra note 16; Sanger & Shane, supra note 9. The FBI apparently did not initially join in this conclusion. See Mark Mazzetti & Eric Lichtblau, C.I.A. Judgment on Russia Built on Swell of Evidence, N.Y. Times (Dec. 11, 2016), at https://www.nytimes.com/2016/12/11/us/politics/cia-judgment-intelligence-russia-hacking-evidence.html. However, an email sent by CIA Director John Brennan on December 16 said that Brennan had “met separately with FBI [Director] … Comey and DNI … Clapper, and there [wa]s strong consensus among [them] on the scope, nature, and intent of Russian interference in our presidential election.” Adam Entous & Ellen Nakashima, FBI in Agreement with CIA that Russia Aimed to Help Trump Win White House, Wash. Post (Dec. 16, 2016), at https://www.washingtonpost.com/politics/clinton-blames-putins-personal-grudge-against-her-for-election-interference/2016/12/16/12f36250-c3be-11e6-8422-eac61c0ef74d_story.html (first alteration in original).

⁵⁴ Entous, Nakashima & Miller, supra note 16; see also Sanger & Shane, supra note 9.

⁵⁵ Mazzetti & Lichtblau, supra note 53. The CIA had shared this assessment with key senators in a closed-door briefing the week before these reports were made public. Entous, Nakashima & Miller, supra note 16. On November 29, a group of seven Democrats from the Senate Intelligence Committee sent a letter to President Obama, which said: “We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public.” Letter from Ron Wyden et al. to the President (Nov. 29, 2016), available at https://www.wyden.senate.gov/download/?id=D12DD589-5800-4BEF-9F93-A0A122F38D29. According to administration officials, the senators specifically requested that the White House release parts of the CIA's closed-door presentation. Entous, Nakashima & Miller, supra note 16. However, the White House did not take any apparent steps in response.

⁵⁶ Sanger & Shane, supra note 9. then-RNC Spokesperson Sean Spicer disputed this claim, stating that “The RNC was not ‘hacked’. The @nytimes was told and chose to ignore.” Sean Spicer (@seanspicer), Twitter (Dec. 9, 2016, 8:29 PM), at https://twitter.com/seanspicer/status/807442009778688000; see also Sanger & Shane, supra note 9 (describing denials by RNC officials). FBI Director Comey later testified that

Russian Intelligence Activities: Hearing Before the S. Select Comm. on Intelligence, 115th Cong. (2017), available at https://www.intelligence.senate.gov/hearings/open-hearing-russian-intelligence-activities [hereinafter Russian Intelligence Activities Hearing] (statement of James Comey, Director, Fed. Bureau of Investigation).

⁵⁷ William M. Arkin, Ken Dilanian & Cynthia McFadden, U.S. Officials: Putin Personally Involved in U.S. Election Hack, NBC News (Dec. 15, 2016), at http://www.nbcnews.com/news/us-news/u-s-officials-putin-personally-involved-u-s-election-hack-n696146. When asked if he believed that President Putin had “authorized the hack,” President Obama said: “Not much happens in Russia without Vladimir Putin. This is a pretty hierarchical operation. Last I checked, there's not a lot of debate and democratic deliberation, particularly when it comes to policies directed at the United States.” Dec. 16 Press Conference, supra note 47.

⁵⁸ Mazzetti & Lichtblau, supra note 53; see also David M. Herszenhorn & Ellen Barry, Putin Contends Clinton Incited Unrest over Vote, N.Y. Times (Dec. 8, 2011), at http://www.nytimes.com/2011/12/09/world/europe/putin-accuses-clinton-of-instigating-russian-protests.html.

⁵⁹ Sanger & Shane, supra note 9.

⁶⁰ Exclusive: Donald Trump on Cabinet Picks, Transition Process, Fox News (Dec. 11, 2016), at http://www.foxnews.com/transcript/2016/12/11/exclusive-donald-trump-on-cabinet-picks-transition-process.

⁶¹ President of Russ. Press Release, Vladimir Putin, Annual News Conference (Dec. 23, 2016, 3:55 PM), at http://en.kremlin.ru/events/president/news/53573.

⁶² Transcript and Video: NPR's Exit Interview with President Obama, NPR (Dec. 19, 2016, 5:00 AM), at http://www.npr.org/2016/12/19/504998487/transcript-and-video-nprs-exit-interview-with-president-obama.

⁶³ Id.

⁶⁴ See White House Press Release, Press Briefing by Press Secretary Josh Earnest (Dec. 12, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/12/12/press-briefing-press-secretary-josh-earnest-121216 [hereinafter Dec. 12 Press Briefing] (“If that's something that can be shared publicly, that's going to come from the intelligence community. It's not going to come from here.”).

⁶⁵ [Editors’ note: In July 2016, Donald Trump said: “Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing”—an apparent reference to Hillary Clinton's deleted emails. He added: “I think you will probably be rewarded mightily by our press.” Ashley Parker & David E. Sanger, Donald Trump Calls on Russia to Find Hillary Clinton's Missing Emails, N.Y. Times (July 27, 2016), at https://www.nytimes.com/2016/07/28/us/politics/donald-trump-russia-clinton-emails.html.]

⁶⁶ Dec. 12 Press Briefing, supra note 64.

⁶⁷ White House Press Release, Press Briefing by Principal Deputy Press Secretary Eric Schultz (Dec. 9, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/12/09/press-briefing-principal-deputy-press-secretary-eric-schultz-12916 [hereinafter Dec. 9 Press Briefing]. Media reports indicated that DNI Clapper would lead the review. Entous, Nakashima & Miller, supra note 16.

⁶⁸ Dec. 9 Press Briefing, supra note 67.

⁶⁹ Id.

⁷⁰ Id.

⁷¹ Id.; see also Ellen Nakashima, National Intelligence Director: Hackers Have Targeted 2016 Presidential Campaigns, Wash. Post (May 18, 2016), at https://www.washingtonpost.com/world/national-security/national-intelligence-director-hackers-have-tried-to-spy-on-2016-presidential-campaigns/2016/05/18/2b1745c0-1d0d-11e6-b6e0-c53b7ef63b45_story.html (summarizing previous election-related hacking incidents).

⁷² Dec. 9 Press Briefing, supra note 67.

⁷³ Ed O'Keefe & Paul Kane, McConnell Announces Senate Probe of Suspected Russian Election Interference: “The Russians Are Not Our Friends,” Wash. Post (Dec. 12, 2016), at https://www.washingtonpost.com/news/powerpost/wp/2016/12/12/schumer-on-congressional-probe-of-russia-i-dont-want-this-to-turn-into-a-benghazi-investigation; Jennifer Steinhauer, Senate and House Leaders Call for Inquiry of Russian Hacking in Election, N.Y. Times (Dec. 12, 2016), at https://www.nytimes.com/2016/12/12/us/politics/mcconnell-supports-inquiry-of-russian-hacking-during-election.html.

⁷⁴ Richard Burr, U.S. Senator for N.C. Press Release, Joint Statement on Committee Inquiry into Russian Intelligence Activities (Jan. 13, 2017), at https://www.burr.senate.gov/press/releases/joint-statement-on-committee-inquiry-into-russian-intelligence-activities.

⁷⁵ Steinhauer, supra note 73.

⁷⁶ U.S. House of Representatives, Permanent Select Comm. on Intelligence Press Release, Joint Statement on Progress of Bipartisan HPSCI Inquiry into Russian Active Measures (Jan. 25, 2017), at http://democrats-intelligence.house.gov/news/documentsingle.aspx?DocumentID=211.

⁷⁷ See Face the Nation Transcript December 11, 2016: McCain, Conway, Sanders, Face the Nation (Dec. 11, 2016), at http://www.cbsnews.com/news/face-the-nation-transcript-december-11-2016-mccain-conway-sanders (noting statement by Senator John McCain that “rogue states … view cyber as a form of warfare”); Jack Reed, U.S. Senator for R.I. Press Release, Reed Backs Bipartisan Probe into Russian Cyberthreats (Dec. 9, 2016), at https://www.reed.senate.gov/news/releases/reed-backs-bipartisan-probe-into-russian-cyberthreats.

Some senators also called for an independent commission to review Russian interference with the election. See Ben Cardin, U.S. Senator for MD Press Release, Senators Cardin, Feinstein, Leahy Call for Independent Nonpartisan Commission to Investigate Russian Interference in Election (Dec. 12, 2016), at https://www.cardin.senate.gov/newsroom/press/release/senators-cardin-feinstein-leahy-call-for-independent-nonpartisan-commission-to-investigate-russian-interference-in-election; see also Charles Schumer, U.S. Senator for N.Y. Press Release, Schumer Remarks Calling for Senate Select Committee to Investigate Russian Interference in 2016 Elections (Dec. 18, 2016), at https://www.schumer.senate.gov/newsroom/press-releases/schumer-remarks-calling-for-senate-select-committee-to-investigate-russian-interference-in-2016-elections (outlining benefits of independent committee). However, Senator McConnell and House Speaker Ryan asserted that the intelligence committees were capable of conducting an inquiry on their own, and they did not take any steps to form an independent commission. O'Keefe & Kane, supra note 73.

⁷⁸ Dec. 12 Press Briefing, supra note 64.

⁷⁹ Id.

⁸⁰ Letter from Christine Pelosi, Cal. Presidential Elector et al. to James Clapper, Director of Nat'l Intelligence (Dec. 12, 2016), available at https://extranewsfeed.com/bipartisan-electors-ask-james-clapper-release-facts-on-outside-interference-in-u-s-election-c1a3d11d5b7b#.fsyd5dpsq.

⁸¹ Id.

⁸² See supra notes 42–45 and corresponding text.

⁸³ White House Press Release, Fact Sheet: Actions in Response to Russian Malicious Cyber Activity and Harassment (Dec. 29, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/12/29/fact-sheet-actions-response-russian-malicious-cyber-activity-and [hereinafter Fact Sheet]; see also Exec. Order No. 13,757 §1, 82 Fed. Reg. 1, 1 (Jan. 3, 2017). Executive Order 13,694 had stated, in relevant part:

1. (a)

   (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:

   1. (i)

      (i) any person determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be responsible for or complicit in, or to have engaged in, directly or indirectly, cyber-enabled activities originating from, or directed by persons located, in whole or in substantial part, outside the United States that are reasonably likely to result in, or have materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States and that have the purpose or effect of:

      1. (A)

         (A) harming, or otherwise significantly compromising the provision of services by, a computer or network of computers that support one or more entities in a critical infrastructure sector;

      2. (B)

         (B) significantly compromising the provision of services by one or more entities in a critical infrastructure sector;

      3. (C)

         (C) causing a significant disruption to the availability of a computer or network of computers; or

      4. (D)

         (D) causing a significant misappropriation of funds or economic resources, trade secrets, personal identifiers, or financial information for commercial or competitive advantage or private financial gain . . . .

Exec. Order No. 13,694 §1(a)(i)(A)–(D), 3 C.F.R. §297, 297 (2015); see also Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States Relating to International Law, 109 AJIL 643, 658 (2015)Google Scholar (describing order in detail).

⁸⁴ Fact Sheet, supra note 83; see also Exec. Order No. 13,757, supra note 83, at §1 & Annex, 82 Fed. Reg. at 1, 3 (adding entities and individuals to list of persons who could be sanctioned under Executive Order 13,694). The five entities sanctioned were the “Main Intelligence Directorate (a.k.a. Glavnoe Razvedyvatel'noe Upravlenie) (a.k.a. GRU)”; the “Federal Security Service (a.k.a. Federalnaya Sluzhba Bezopasnosti) (a.k.a. FSB)”; “Special Technology Center (a.k.a. STLC, Ltd. Special Technology Center St. Petersburg)”; “Zorsecurity (a.k.a. Esage Lab)”; and “Autonomous Noncommercial Organization ‘Professional Association of Designers of Data Processing Systems’ (a.k.a. ANO PO KSI).” Id., at Annex, 82 Fed. Reg. at 3. “STLC … assisted the GRU in conducting signals intelligence operations; Zorsecurity … provided the GRU with technical research and development; and … ANO PO KSI … provided specialized training to the GRU.” Fact Sheet, supra note 83. The four individuals sanctioned were Igor Valentinovich Korobov, Sergey Aleksandrovich Gizunov, Igor Olegovich Kostyukov, and Vladimir Stepanovich Alexseyev. Exec. Order No. 13,757, supra note 83, at Annex, 82 Fed. Reg. at 3. Korobov is the current chief of the GRU, and the other three individuals are deputy chiefs. Fact Sheet, supra note 83.

⁸⁵ Fact Sheet, supra note 83; see also Issuance of Amended Executive Order 13694; Cyber-Related Sanctions Designations, U.S. Dep't of the Treasury (Dec. 29, 2016), at https://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20161229.aspx. The two individuals, Evgeniy Mikhailovich Bogachev and Aleksey Alekseyevich Belan, were sanctioned under Section 1(a)(i)(D) of Executive Order 13694. See Fact Sheet, supra note 83; Exec. Order No. 13,694, supra note 83, at §1(a)(i)(D), 3 C.F.R. §297, 297. “Bogachev and his cybercriminal associates [we]re responsible for the theft of over $100 million from U.S. financial institutions, Fortune 500 firms, universities, and government agencies.” Fact Sheet, supra note 83. “Belan compromised the computer networks of at least three major United States-based e-commerce companies.” Id.

⁸⁶ U.S. Dep't of State Press Release, Department of State Actions in Response to Russian Harassment (Dec. 29, 2016), at https://2009-2017.state.gov/r/pa/prs/ps/2016/12/266145.htm [hereinafter Department of State Actions].

⁸⁷ Id. State Department officials indicated that these compounds—in Upper Brookville, New York, and Maryland's Eastern Shore—were used for Russian intelligence activities, but it is unclear whether they were used in connection with the election-related intrusions. David E. Sanger, Obama Strikes Back at Russia for Election Hacking, N.Y. Times (Dec. 29, 2016), at https://www.nytimes.com/2016/12/29/us/politics/russia-election-hacking-sanctions.html.

⁸⁸ Department of State Actions, supra note 86.

⁸⁹ U.S. Dep't of Homeland Sec. Press Release, Joint DHS, ODNI, FBI Statement on Russian Malicious Cyber Activity (Dec. 29, 2016), at https://www.dhs.gov/news/2016/12/29/joint-dhs-odni-fbi-statement-russian-malicious-cyber-activity.

⁹⁰ Nat'l Cybersec. & Commc'ns Integration Ctr. & Fed. Bureau of Investigation, GRIZZLY STEPPE – Russian Malicious Cyber Activity 1 (2016), at https://www.us-cert.gov/sites/default/files/publications/JAR_16-20296A_GRIZZLY%20STEPPE-2016-1229.pdf. A summary in the Joint Analysis Report (JAR) noted that “[p]revious JARs have not attributed malicious cyber activity to specific countries or threat actors. However, public attribution of these activities to RIS is supported by technical indicators from the U.S. Intelligence Community, DHS, FBI, the private sector, and other entities.” Id.

⁹¹ Id.

⁹² White House Press Release, Statement by the President on Actions in Response to Russian Malicious Cyber Activity and Harassment (Dec. 29, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/12/29/statement-president-actions-response-russian-malicious-cyber-activity.

⁹³ White House Press Release, Press Call on the Administration Response to Russian Malicious Cyber Activity and Harassment (Dec. 29, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/12/29/press-call-administration-response-russian-malicious-cyber-activity-and.

⁹⁴ Ministry of Foreign Aff. of the Russ. Fed'n Press Release, Comment by Foreign Minister Sergey Lavrov on Recent US Sanctions and the Expulsion of Russian Diplomats, Moscow (Dec. 30, 2016), at http://www.mid.ru/en/press_service/minister_speeches/-/asset_publisher/7OvQR5KJWVmR/content/id/2583996.

⁹⁵ President of Russ. Press Release, Statement by the President of Russia (Dec. 30, 2016, 3:15 PM), at http://en.kremlin.ru/events/president/news/53678. Later that day, President-elect Trump noted his approval of this statement on Twitter. Donald J. Trump (@realDonaldTrump), Twitter (Dec. 30, 2016, 11:41 AM), at https://twitter.com/realDonaldTrump/status/814919370711461890 (“Great move on delay (by V. Putin) - I always knew he was very smart!”).

⁹⁶ John McCain, U.S. Senator AZ Press Release, McCain & Graham on New Sanctions Against Russia (Dec. 29, 2016), at http://www.mccain.senate.gov/public/index.cfm/press-releases?ID=DFAE6FFD-976A-468C-B53B-15D548E46BD7.

⁹⁷ Counteracting Russian Hostilities Act of 2017, S. 94, 115th Cong. §§103–05 (2017).

⁹⁸ See Russia Sanctions Review Act of 2017, S. 341, 115th Cong. (2017).

⁹⁹ Id. §4(a).

¹⁰⁰ See id. §§4(b)–(c).

¹⁰¹ Michael D. Shear, Donald Trump, After Dismissing Hacking, Agrees to an Intelligence Briefing, N.Y. Times (Dec. 29, 2016), at https://www.nytimes.com/2016/12/29/us/politics/donald-trump-russia-hack.html.

¹⁰² Id.

¹⁰³ Julian Assange: Our Source Is Not the Russian Government, Fox News (Jan. 3, 2017), at http://www.foxnews.com/transcript/2017/01/03/julian-assange-our-source-is-not-russian-government; see also infra note 15 (noting similar previous assertion by Mr. Assange).

¹⁰⁴ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 4, 2017, 4:22 AM), at https://twitter.com/realDonaldTrump/status/816620855958601730.

¹⁰⁵ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2017, 5:25 AM), at https://twitter.com/realDonaldTrump/status/816999062562107392.

¹⁰⁶ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2017, 5:45 AM), at https://twitter.com/realDonaldTrump/status/817004210529116160.

¹⁰⁷ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2017, 4:30 PM), at https://twitter.com/realDonaldTrump/status/817166353266262016.

¹⁰⁸ Donald J. Trump (@realDonaldTrump), Twitter (Jan. 5, 2017, 4:40 PM), at https://twitter.com/realDonaldTrump/status/817168818539757568. Adding to these statements, the day before the intelligence briefing, President-elect Trump stated that the focus on Russian interference with the election was a “political witch hunt” to distract from the Democratic Party's loss in the presidential election. See Michael D. Shear & David E. Sanger, Putin Led a Complex Cyberattack Scheme to Aid Trump, Report Finds, N.Y. Times (Jan. 6, 2017), at https://www.nytimes.com/2017/01/06/us/politics/donald-trump-wall-hack-russia.html.

¹⁰⁹ Antonio José Vielma, Vice President-Elect Pence: Trump Expressed “Healthy American Skepticism” About US Intelligence Conclusions, CNBC (Jan. 4, 2017), at http://www.cnbc.com/2017/01/04/vice-president-elect-pence-trump-expressed-healthy-american-skepticism-about-us-intelligence-conclusions.html.

¹¹⁰ Foreign Cyber Threats Hearing, supra note 35, at 51 (statement of James R. Clapper, Jr., Director of Nat'l Intelligence). Indeed, as DNI Clapper indicated, intelligence agencies in early January “st[ood] actually more resolutely on the strength of th[e] statement that we made on the 7th of October [attributing the hacks to the Russian government].” Id. at 31.

¹¹¹ See Shear & Sanger, supra note 108; see also supra notes 67–72 and corresponding text.

¹¹² The NSA only had “moderate confidence” in this assessment, while the CIA and FBI both had “high confidence.” Office of the Director of Nat'l Intelligence, ICA 2017-01D, Assessing Russian Activities and Intentions in Recent US Elections 1 (2017), available at https://assets.documentcloud.org/documents/3254237/Russia-Hack-Report.pdf.

¹¹³ Id. at 1–2.

¹¹⁴ Id. at 2.

¹¹⁵ [Editors’ note: The report appears to refer to an interview that Putin gave to Bloomberg news. See Interview to Bloomberg, supra note 25 (“[D]oes it really matter who hacked Mrs. Clinton's election campaign team database? Does it? What really matters is the content shown to the community. This is what the discussion should be held about.”) (quoting President Putin).]

¹¹⁶ Office of the Director of Nat'l Intelligence, supra note 112, at 2–3. The report also detailed how Russia's “state-run propaganda machine—comprised of its domestic media apparatus, outlets targeting global audiences such as RT and Sputnik, and a network of quasi-government trolls—contributed to the influence campaign by serving as a platform for Kremlin messaging to Russian and international audiences.” See id. at 3.

¹¹⁷ Id. at 3.

¹¹⁸ Id. at i.

¹¹⁹ A media report indicated that the classified report was over fifty pages long. Adam Entous & Greg Miller, U.S. Intercepts Capture Senior Russian Officials Celebrating Trump Win, Wash. Post (Jan. 5, 2017), at https://www.washingtonpost.com/world/national-security/us-intercepts-capture-senior-russian-officials-celebrating-trump-win/2017/01/05/d7099406-d355-11e6-9cb0-54ab630851e8_story.html.

¹²⁰ Office of the Director of Nat'l Intelligence, supra note 112, at i. Such intelligence might have included, among other evidence, communications intercepted by U.S. intelligence agencies in which Russian officials—including those with knowledge of Russia's election interference campaign—celebrated Mr. Trump's election. See Entous & Miller, supra note 119.

¹²¹ Office of the Director of Nat'l Intelligence, supra note 112, at 1.

¹²² Shaun Walker, Russia Slates “Baseless, Amateurish” US Election Hacking Report, Guardian (Jan. 9, 2017), at https://www.theguardian.com/world/2017/jan/09/vladimir-putin-slates-baseless-amateurish-us-election-hacking-report.

¹²³ Id.

¹²⁴ Donald Trump's Statement After Intelligence Briefing on Hacking, N.Y. Times (Jan. 6, 2017), at https://www.nytimes.com/2017/01/06/us/politics/donald-trump-statement-hack-intelligence-briefing.html.

¹²⁵ Natalia Wojcik, Mack Hogan & Mike Juang, Transcript of President-Elect Trump's News Conference, CNBC (Jan. 11, 2017, 1:37 PM), at http://www.cnbc.com/2017/01/11/transcript-of-president-elect-donald-j-trumps-news-conference.html.

¹²⁶ Karoun Demirjian, Democrats Press FBI to Investigate Trump-Russia Ties, Wash. Post (Jan. 13, 2017), at https://www.washingtonpost.com/news/powerpost/wp/2017/01/13/democrats-press-fbi-to-investigate-trump-russia-ties. At the briefing, intelligence officials reportedly also presented President-elect Trump with a brief synopsis of two allegations: (1) that Russian operatives are in possession of compromising personal and financial information on him, and (2) that Mr. Trump's surrogates exchanged information with individuals associated with the Russian government during the campaign. Evan Perez, Jim Sciutto, Jake Tapper & Carl Bernstein, Intel Chiefs Presented Trump with Claims of Russian Efforts to Compromise Him, CNN (Jan. 12, 2017), at http://www.cnn.com/2017/01/10/politics/donald-trump-intelligence-report-russia/index.html. The synopsis was drawn from a thirty-five-page dossier of memos written by a former British intelligence operative. See id. President-elect Trump has firmly denied the allegations. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Jan. 10, 2017, 5:19 PM), at https://twitter.com/realDonaldTrump/status/818990655418617856 (calling reports “FAKE NEWS - A TOTAL POLITICAL WITCH HUNT!”).

¹²⁷ See supra note 74 and corresponding text (noting that investigation would examine “any intelligence regarding links between Russia and individuals associated with political campaigns”). The House Intelligence Committee also stated that it would investigate those links. See supra note 76 and corresponding text (describing same update as Senate Intelligence Committee). Those committees lack the power to compel information disclosure. See Karoun Demirjian, Senate Intel Chiefs Promise Investigation of Trump-Russia Ties as House Democrats Accuse FBI Director of Stonewalling, Wash. Post (Jan. 13, 2017), at https://www.washingtonpost.com/news/powerpost/wp/2017/01/13/democrats-accuse-fbi-director-of-stonewalling-on-trump-russia-ties-as-more-call-for-him-to-step-down (noting limitations of Senate Intelligence Committee). However, they can investigate the links by examining information already collected by intelligence agencies. Id.

¹²⁸ See Michael S. Schmidt, Matthew Rosenberg, Adam Goldman & Matt Apuzzo, Intercepted Russian Communications Part of Inquiry into Trump Associates, N.Y. Times (Jan. 19, 2017), at https://www.nytimes.com/2017/01/19/us/politics/trump-russia-associates-investigation.html; U.S. Inquiries into Russian Election Hacking Include Three FBI Probes, Reuters (Feb. 18, 2017), at http://www.reuters.com/article/us-usa-trump-russia-cyber-idUSKBN15X0OE (reporting that the FBI is pursuing at least three separate investigations, including one into financial transactions by Russian persons believed to have links to Trump's associates).

¹²⁹ Demirjian, supra note 127. Following that meeting, some House Democrats even called for Comey's resignation because they did not believe that he could capably lead any Russian hacking investigation. See id.

¹³⁰ Russian Intelligence Activities Hearing, supra note 56. Mr. Comey reiterated later in the hearing that “especially in a public forum, [the FBI] never confirm[s] or den[ies] a pending investigation.” Id.

¹³¹ See Maggie Haberman, Matthew Rosenberg, Matt Apuzzo & Glenn Thrush, Michael Flynn Resigns as National Security Advisor, N.Y. Times (Feb. 13, 2017), at https://www.nytimes.com/2017/02/13/us/politics/donald-trump-national-security-adviser-michael-flynn.html; see also Greg Miller, Adam Entous & Ellen Nakashima, National Security Adviser Flynn Discussed Sanctions with Russian Ambassador, Despite Denials, Officials Say, Wash. Post (Feb. 9, 2017), at https://www.washingtonpost.com/world/national-security/national-security-adviser-flynn-discussed-sanctions-with-russian-ambassador-despite-denials-officials-say/2017/02/09/f85b29d6-ee11-11e6-b4ff-ac2cf509efe5_story.html (describing events preceding Mr. Flynn's resignation).

¹³² David Ignatius, Why Did Obama Dawdle on Russia's Hacking?, Wash. Post (Jan. 12, 2017), at https://www.washingtonpost.com/opinions/why-did-obama-dawdle-on-russias-hacking/2017/01/12/75f878a0-d90c-11e6-9a36-1d296534b31e_story.html.

¹³³ Miller, Entous & Nakashima, supra note 131. Those officials had “access to reports from U.S. intelligence and law enforcement agencies that routinely monitor the communications of Russian diplomats.” Id.

¹³⁴ White House Press Release, Remarks by President Trump in Press Conference (Feb. 16, 2017), at https://www.whitehouse.gov/the-press-office/2017/02/16/remarks-president-trump-press-conference [hereinafter Feb. 16 Press Conference]. Vice President Pence had previously stated, based on his conversations with Gen. Flynn, that Gen. Flynn and Mr. Kislyak had not discussed the sanctions against Russia at all. See Face the Nation Transcript January 15, 2017: Pence, Manchin, Gingrich, Face the Nation (Jan. 15, 2017, 2:06 PM), at http://www.cbsnews.com/news/face-the-nation-transcript-january-15-2017-pence-manchin-gingrich; Miller, Entous & Nakashima, supra note 131. Gen. Flynn later denied ever discussing sanctions with Mr. Kislyak, both to the FBI and to media outlets, but then stated that he “had no recollection of discussing sanctions, [but] couldn't be certain that the topic never came up.” Sari Horwitz & Adam Entous, Flynn in FBI Interview Denied Discussing Sanctions with Russian Ambassador, Wash. Post (Feb. 16, 2017), at https://www.washingtonpost.com/world/national-security/flynn-in-fbi-interview-denied-discussing-sanctions-with-russian-ambassador/2017/02/16/e3e1e16a-f3d5-11e6-8d72-263470bf0401_story.html.

¹³⁵ Feb. 16 Press Conference, supra note 134; see also White House Press Release, Press Briefing by Press Secretary Sean Spicer, #12 (Feb. 14, 2017), at https://www.whitehouse.gov/the-press-office/2017/02/14/press-briefing-press-secretary-sean-spicer-2142017-12 (“The evolving and eroding level of trust as a result of this situation and a series of other questionable instances is what led the President to ask for General Flynn's resignation. Immediately after the Department of Justice notified the White House Counsel of the situation, the White House Counsel briefed the President and a small group of senior advisors. The White House Counsel reviewed and determined that there [wa]s not a legal issue, but rather a trust issue.”).

¹³⁶ See Karoun Demirjian, House Intelligence Committee Open to Probing Michael Flynn, Wash. Post (Feb. 16, 2017), at https://www.washingtonpost.com/powerpost/house-intelligence-committee-open-to-probing-michael-flynn/2017/02/16/b3d9ea0a-f496-11e6-a9b0-ecee7ce475fc_story.html; Senate Republicans: Intelligence Committee Will Investigate Flynn Contact with Russia, Wash. Post (Feb. 14, 2017), at https://www.washingtonpost.com/video/national/senate-republicans-intelligence-committee-will-investigate-flynn-contact-with-russia/2017/02/14/b6f5dad2-f2ed-11e6-9fb1-2d8f3fc9c0ed_video.html. Leaders of the Senate Judiciary Committee “issued a letter requesting a Justice Department briefing and access to relevant documents concerning Mr. Flynn's resignation.” Matt Flegenheimer, Despite Democrats’ Demands, Broad Inquiry on Russia Ties Isn't Assured, N.Y. Times (Feb. 15, 2017), at https://www.nytimes.com/2017/02/15/us/politics/trump-russia-inquiry.html.