Generally speaking, you have to make some very large assumptions about not only the extent—but also the timing—of hypothetical Trump-Russia collusion to imagine a strong case against anyone in the Trump orbit under U.S. hacking laws. It’s even less plausible that Donald Trump would be personally involved: He doesn’t even use modern communications technology, much less understand it.

Elections

It’s illegal for foreign persons to participate in a U.S. election. If any U.S. person knowingly encouraged or aided a foreigner to do so, that U.S. person likely committed a crime. If any agent of the Trump campaign (and election law has built a broad definition of who counts as an agent of the campaign) did so, then the whole campaign would be implicated.

But election law defines “participation” in terms of the expenditure of funds. Pressing a button to forward data from one account to another would almost certainly not count as “participation.” And U.S. election law also carves out an absolute exemption for media organizations—meaning that any prosecution for election-law violations, even more than a hacking prosecution, will turn on whether a court regards WikiLeaks as a media organization or the publishing arm of an espionage organization.

In sum, even if people in the Trump orbit did encourage Russian spies to forward their hacks to WikiLeaks … even if those people advised WikiLeaks on timing and manner of release of the hacked material … even if those people shared their election strategy with WikiLeaks and asked WikiLeaks to rummage through the hack to identify materials that would most effectively aid the Trump cause … even if each of these thus-far-unproven things could be documented beyond a reasonable doubt, a prosecution would remain very difficult.

An imaginary counter-example illustrates the difficulty. Instead of a Russian intelligence agency hacking the Democrats looking for embarrassing material, let’s imagine that a French agency had discovered embarrassing material on Trump’s Russia involvement. Suppose that instead of Russian agents making contact with the Trump campaign, it was the French agents who had reached out to the Clinton campaign. Pretend that the Clinton campaign had said, “You guys need to tell the world about this”—and that the French agency had then leaked its evidence to Le Monde or Le Figaro. Would anybody say that the Clinton campaign had broken any law? Obviously there is an enormous moral and strategic difference between these two hypothetical situations. But election law does not distinguish between nice foreigners and nasty foreigners. It’s not at all certain that the law distinguishes between WikiLeaks and Le Figaro. Any special prosecutor will have to weigh those legal rules against his or her moral outrage.

Espionage

The Espionage Act of 1917, still the fundamental law governing disclosure of secret information, forbids Americans to disclose information that qualifies as both important to national security and also “closely held by the United States.” While a government employee can be punished for leaking any classified material, no matter how unimportant or out-of-date, a private citizen bears no such duty.