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A large portion of the trial, legal experts say, will focus on whether Storm intended for Tornado Cash to be used for illicit means, whether he knew that it was used to launder stolen funds, and whether he knew that inaction meant breaking the law, as prosecutors allege.
The defense will claim that the developers never intended that Tornado Cash be used to commit fraud, says Cohen. “The prosecution will say that they should have known but stuck their heads in the sand,” he says.
The jury will also be presented with conflicting views as to how Tornado Cash was structured and operated, which could have a bearing on what rules Storm and the other developers were required to follow.
Government prosecutors contend that Tornado Cash was effectively run like any other for-profit business, irrespective of the founders relinquishing control of the underlying code. In the indictment, they argue that Storm was operating a money transmitter, which required him to collect identifying information about users that might have prevented Tornado Cash being abused to launder the proceeds of cybercrime.
The defense, meanwhile, has repeatedly emphasized the distance between Storm and the transactions that pass through Tornado Cash. Though the developers administered an optional user interface, at no point did they have custody of users’ funds, they point out. Storm’s supporters claim that the government’s interpretation of money transmission law is without precedent.
“If publishing a software protocol for private transactions that people make on their own behalf is a crime in this country, then we’ve abandoned all of our First and Fourth Amendment principles that make this country great,” claims Peter Van Valkenburgh, executive director at crypto advocacy nonprofit Coin Center.
A guilty verdict, Storm has implied, could deal a potentially fatal blow to decentralized finance—the ambition in crypto circles to develop peer-to-peer financial services free from rent-seeking intermediaries and top-down control. “If I lose, DeFi dies with me,” he wrote, in the June X post. “The dream of financial freedom, the code I believed in—it all fades into darkness.”
The spillover effects could be even greater in scope, others have argued, resulting in a chilling of the entire software development industry. “It’s a referendum on the right to publish software. It’s much broader than DeFi,” claims Van Valkenburgh. “It’s a referendum on whether you can perform the functions of a software developer and communications intermediary without facing unlimited criminal liability for sanctions, money laundering, and unlicensed money transmission.”
If Storm is liable for the abuse of Tornado Cash by illicit actors, his defenders ask, why isn’t Linus Torvalds liable for criminality enabled by the Linux operating system, or Meta liable for criminal activity conducted over WhatsApp?
In the event of a guilty verdict, there is a high likelihood that these arguments will escalate to the appellate courts. Multiple Storm supporters say they prefer his chances in the Second Circuit, where judges—instead of a jury of peers—are tasked with rendering a cold and unemotional verdict on the application of the law.
“The government’s theory cannot be correct and ultimately will be rejected by the courts, if not by a jury,” claims Chervinsky. “The Supreme Court of the United States may be where we end up.”
For his part, Storm has cut a resolute and unrepentant figure as his trial date approaches. “I do not have any regrets of my actions,” he said in a recent interview with the Crypto In America podcast. “I wouldn’t change anything I’ve done.”
