Has Donald Trump Jr broken the law? And what kind of legal trouble, exactly, might he or other Trumpworld figures be in, culminating with the president himself? Have we just gotten a step closer to impeachment? Or is that state of play basically unchanged?
Newly released emails seem to show the eldest Trump son leaping at an offer of “ultra sensitive” “official documents and information” from a “Russian government attorney”. The emails were released by Trump Jr himself, in a move exiled TV host Bill O’Reilly called “smart”, despite the fact that it was taken under pressure from journalists.
Based on the emails, Trump Jr’s conduct has more than a strong whiff of illegality about it, many experts think. But others argue that the potential case against Trump Jr is not so straightforward.
It’s worth mentioning up top that the president has exceptionally broad powers to pardon criminals. If Richard Nixon earned a pardon from a vice-president who did not particularly care for him, it’s conceivable that Donald Trump Jr might earn a pardon from his father, should Trump Jr – in a truly remarkable and historic twist – turn out to need one.
It likewise bears mentioning that the most urgent question of perceived criminality facing the country may not be the potential statutory violations of a secondary Trumpworld figure, but the possible abuse of power, obstruction of justice or violation of his oath of office by the president himself.
Those questions cannot be settled in a federal court but must be settled by Congress, which currently lies firmly in the control of Republicans – who at first blush did not seem too bothered by the latest twist of the Trump-Russia scandal and have indicated no intention of going after the president.
Finally, it’s important to note that the public does not know what justice department investigators may have discovered about ties between Trump campaign figures and Moscow. The email revelations came about as a result of dogged reporting and strategic, perhaps vindictive disclosures by White House officials. Justice department investigators may have information that moots the present analysis – or not.
But here’s a rundown of the key players in the simmering scandal, with notes on the technical potential legal hazards they may (currently) face. We begin with Trump Jr, the focus of the most recent revelations.
Whatever you do, don’t call it “treason”, warned Fordham law school professor Jed Shugerman, author of the Shugerblog commentary site.
“As a legal matter, it’s irresponsible for anyone to be calling this ‘treason’,” he said. “These terms not only have legal meaning but they also can be part of overplaying a legal or rhetorical hand.”
“Treason” is unusually narrowly defined in the constitution as aiding enemies in wartime, Shugerman said, with the framers, having just fought a revolution, working with acute awareness of the potential explosiveness of the charge.
Instead, the strongest case (currently) against Trump Jr appears to fall under federal campaign finance law, which prohibits campaigns from soliciting contributions from foreign entities. If you are running for office in the US, you are not supposed to seek or take help from non-Americans. Bernie Sanders knows this, which is why he hit Hillary Clinton over foreign donations to her family’s foundation.
“If these e-mails are not a hoax, they are the smoking gun showing that Donald Trump Jr illegally solicited a contribution from a foreign national – in the form of opposition research against Hillary Clinton,” said Paul S Ryan, a vice-president at Common Cause, a nonpartisan government watchdog, in a statement. “These e-mails show a clear violation of federal campaign finance law.”
Multiple legal experts share Ryan’s view. But “it’s actually quite complicated”, said Shugerman, who said we’re in “really unprecedented territory”.
Up for debate is whether “opposition research” potentially provided by Moscow to Trump Jr would qualify as a “thing of value” under campaign finance law, which explicitly prohibits “contributions, donations, expenditures and disbursements”.
“This statute’s never been applied, as far as I can tell, to any exchange of information,” Shugerman said. “And the bigger concern is that courts are going to be very cautious about applying this statute to the sharing of information because of free speech concerns.
“So even though one could make the argument that in these emails there’s evidence of conspiracy to violate campaign finance laws, there’s no precedent that suggests that those laws would be applied as broadly.”
Trump Jr’s legal jeopardy does not appear to end with campaign finance law, however. Federal law prohibits hacking under the computer fraud and abuse act of 1986, Shugerman pointed out. Trump Jr has not been accused of hacking, but it’s conceivable that he may at some point be vulnerable to accusations of a conspiracy involving hacking.
Finally, there are general legal hazards that apply not only to Trump Jr but to every Trump campaign figure swept up by accusations of collusion with Moscow. A recent conservative talking point to have emerged in the clamor is the assertion that such collusion would not be criminal.
The web site Politifact tested that assertion and judged it false, with legal experts pointing to anti-corruption, anti-coercion, campaign finance and anti-fraud statutes.
Under federal anti-fraud statute, Harvard law professor John Coates told the site, “it is a federal crime to conspire with anyone, including a foreign government, to ‘deprive another of the intangible right of honest services’.”
“That would include fixing a fraudulent election, in my view, within the plain meaning of the statute,” Coates said.
Jared Kushner
The president’s son-in-law is known to be a person of interest in the FBI investigation into possible collusion between the Trump campaign and Moscow. Presumably the special counsel, Robert Mueller, and the two congressional committees looking into the matter also are interested in speaking with Kushner.
Trump Jr appears to have forwarded his dazzling email chain to Kushner, and Kushner reportedly sat in on Trump Jr’s June 2016 meeting with the lawyer identified in the emails as a “Russian government attorney”. That makes Kushner conceivably vulnerable, legally speaking, along roughly the same lines as Don Jr, though it is significant that Kushner did not solicit or accept the meeting, it appears.
One potential legal hazard for Kushner and others on this list is perjury before Congress or lying to law enforcement. The Trump campaign repeatedly denied any messy entanglements with Russia. It now appears that those denials were lies.
Might Kushner or others on this list have repeated those lies told publicly in a privately and legally binding setting? Significantly, there have been no reports that Kushner has been interviewed by the FBI or Mueller, and Kushner has not testified before Congress, as Trump Jr has now promised to do.
Kushner has a history of incomplete disclosures on matters of substance. In April it emerged that he had failed to describe dozens of contacts with foreign officials on disclosure forms required for him to obtain top-secret governmental security clearance, which he nevertheless obtained and, as of this writing, maintains.
In March, the Washington Post reported, citing unnamed US officials with access to surveillance of the Russian ambassador that Kushner sought last December, during the presidential transition, to set up a back-channel for communications with Russia that would skirt US government surveillance.
Kushner’s motives for doing so, if he did, are sure to warrant close scrutiny by investigators.
Paul Manafort
Trump’s former campaign chairman was the other apparent recipient of Trump Jr’s email chain, and Manafort also reportedly attended the June 2016 meeting with the “Russia government attorney”.
Associates of Manafort said on Tuesday that he claims not to have read to the bottom of the chain of emails forwarded to him, and may not have known with whom he was meeting. Nonetheless, Manafort could face similar legal hazards to Kushner and Trump Jr, including charges relating to alleged collusion, fraud, corruption, campaign finance violations or even perjury.
Unlike his colleagues on the Trump campaign, Manafort has a long career in politics and political consulting, one that has exposed him, ever since he joined the Trump team in March 2016, to unwonted public attention and legal hazards. Manafort resigned after his name turned up in a secret ledger of payments by a Moscow-backed Ukrainian political party.
Just two weeks ago, Manafort registered retroactively with the justice department as a foreign agent for lobbying work he did from 2012 to 2014 for the Ukrainian political party. The filing said that Manafort’s firm had received $17.1m over two years from the party, which US voters did not known about last November.
Failure to register as a foreign agent is not a crime that is typically prosecuted, though the retroactive filing may involve a fine.
Like Manafort, former national security adviser Flynn retroactively registered as a foreign agent, admitting that he had worked as a consultant in 2016 for a Turkish businessman. He has also taken tens of thousands of dollars from Russia-linked companies for speeches and potentially other unspecified services.
In May, Flynn declined to comply with a congressional subpoena to testify about his work for Russia and his campaign activities, invoking fifth amendment protections against self-incrimination.
Like Kushner, Flynn failed to note his foreign contacts on disclosure forms used to obtain – or, in Flynn’s case, maintain – security clearances. Flynn spoke with Pentagon investigators as part of the process. He also later spoke separately with FBI agents about his contacts with the Russian ambassador.
If Flynn was less than frank in any of those legally binding conversations, he may run a risk of prosecution for making false statements, the New York Times noted. He may also be prosecutable for having taken foreign payments without permission as a retired military officer, for having failed to register as a foreign agent and for having failed to comply with subpoenas.
(TheGuardian US)
