If you read nothing else about the Russia investigation this week-end I urge you to read this analysis in Lawfare by the former White House Counsel to Barack Obama, Bob Bauer. He breaks down in layman’s terms what the actual legal liabilities the Trump campaign faces from its collusion with the Russian government. The argument always seems to be that “collusion” isn’t a crime and therefore whatever happened was legal. It’s true that there’s no criminal statute against this vague term, but there are plenty laws against what we know they did. And, we don’t know everything, not by a long shot.
This is just an excerpt. Please read the whole thing if you want to get a sense of how the Russia investigation may be playing out from a legal standpoint:
In June of 2016, the campaign invited Russians connected to the Kremlin to travel to the United States to discuss information in their possession supposedly damaging to Hillary Clinton. Don Jr. expressed enthusiasm for the offer of assistance and conveyed his view of how the publication of the material could be timed to best serve the campaign’s interests. “[I]f it’s what you say I love it especially later in the summer.”
Trump Jr. and the senior campaign staff acted with clear knowledge that the individuals engaging with their campaign were closely associated with the Russian government and acting with its authorization. The intermediaries who proposed and arranged the meeting told him so. The emails from Mr. Goldstone stressed in the first line (1) that the government, through the offices of the Crown Prosecutor, was the source of assistance, and (2) that the Moscow traveling party was tendering campaign assistance as “part of Russia and its government’s support of Mr. Trump.”
This was months after Papadopoulos first heard about the emails–the second time that the Russians had, with evident interest in the part of the Trump campaign, offered assistance. The Russians would also have been aware that, four days after their offer of this meeting, Trump announced plans for a press conference at which new disclosures about Secretary Clinton would be made. The president seems to have believed that something sensational for use against Clinton might soon be in hand. The timing suggests that he was alerted to the offer from the Russian government and open to it. Again, the Russians would have taken note.
It is not clear what happened at the meeting, but we do know that the president participated in publicly misrepresenting the nature of the meeting and the identities of those in attendance. Bannon has expressed disbelief that anyone would think that the president was not informed in real time about what the Russians came to offer. He suggests that Don Jr. might have brought the Russian visitors to meet with his father.
The campaign dismisses the encounter and argues that the Russians came with material that the campaign senior staff did not think useful. Perhaps so; but on this question, too, we know a good deal less than the special counsel, and a final public accounting of what transpired at the meeting is still to come. But it is well established that the meeting took place, and its significance lies in part in that fact alone. The Russians knew that an American presidential campaign was willing to accept direct support from a foreign government. They would have learned from the meeting that the Trump campaign was, in fact, eager for the information about Clinton cited without specifics in the Goldstone emails. Don Jr. has acknowledged that he “pressed” the Russian lawyer for more information during the meeting.
Later in the year, Don Jr. communicated privately with Wikileaks, the known agent of the Russian government in the distribution of illegally hacked material. Once again, he confirmed the importance the campaign attached to these disclosures. He accepted from WikiLeaks a link for general distribution that would facilitate press access to the emails of supposedly highest interest. Fifteen minutes later, picking up on the theme that no one should overlook the importance of this email cache, his father tweeted out a complaint that the press was failing to report more thoroughly about this material. Another two days later, Don Jr. tweeted out the link provided by WikiLeaks. Did Trump Sr. learn about the WikiLeaks communications from his son and act on the specific request that he help in promoting the emails? And, of course, by October, the president was appealing openly to the Russians to locate and disseminate deleted Clinton emails.
These known facts support a case that the Trump campaign knowingly solicited the Russian government’s support and gave the Kremlin “substantial assistance” in achieving its electoral aims.
(1)The solicitation theory draws strength from the communications between the Trump campaign and the Russian government intermediaries, and from the surrounding circumstances. The Russian government probed for the campaign’s expression of interest in the emails; the Trump campaign left little doubt that it was interested. In fact, the exchanges between the Trump campaign and the emissaries from Moscow constitute an explicit statement of that interest in the “thing of value” the Russians claimed to have. To the extent that the campaign might answer that it never quite “asked for” anything in particular, merely agreeing to receive the traveling party and listen, the problem is that the law reaches “implicit” solicitations, not just specific requests. The rule also covers words-plus-conduct, and the behavior of the campaign–an extraordinary meeting with agents of a foreign government in campaign headquarters with the senior staff–bolsters a solicitation charge.
Moreover, the “thing of value” the Russians were peddling remained the same over the course of the year. The purloined emails were not a one-time gift to the campaign. First came the DNC material, then the Podesta stolen emails, and WikiLeaks spread them out over time, in a series of disclosures. The entire course of dealing between the campaign, the Russians and WikiLeaks reflects on the campaign’s part an ongoing strategic commitment to these revelations, and its active assistance to the Russians in using them to maximum effect. The solicitation itself did not take place on just one occasion but was confirmed over time.
(2) “Substantial assistance” is not hard to plead on these facts, coupled with those that may yet come in response to the clear and pending questions. The campaign knowingly encouraged the Russians and Wikileaks at every turn. It was helpful enough that the nominee, rather than denouncing this intervention, publicly applauded it. His tweets and those of his son were also beneficial to the Russian cause.
It also seems to have escaped notice that the campaign aided the Russians by providing access to its judgments about attacks that would be ineffective. The campaign suggests that the Russians came to the U.S. with information about questionable donations implicating Clinton, and they waved this off as of no use or interest. That, too, was valuable to the Russians, who could then turn to other, more fruitful lines of attack. The point is that the Russians and the campaign were working together, sharing information toward the achievement of a shared goal, and the alliance they forged was unquestionably advantageous to the Kremlin.
Trump Campaign Liability
A criminal prosecution will have to address questions of intent., and the president and his campaign team may defend by arguing a lack of clarity about motive in these unusual circumstances. They might stress that the campaign never accepted any cash. It played no part in the hacking of the DNC or of Podesta’s personal email account. Its intention was just to reinvigorate a relationship badly damaged in the Obama years. As all the rest is just politics, maybe some bad judgment exercised here or there, but in no way an appropriate basis for what would be, certainly, an unprecedented criminal charge.
This defense has to fail at least in the case of the Trump campaign as an entity. Let’s assume, for example, that Don Jr., inexperienced and naïve in the way of politics, did not understand legal problems arising from his contacts with agents of the Russian government in Moscow and WikiLeaks. He might also argue in his own defense the more experienced members of the campaign staff who might have warned him about these problems said nothing. What’s more, they accepted his invitation that they meet with Russian agents at the Trump Tower in June 2016.
If Don Jr. did affirmatively advise his father about the meeting, the WikiLeaks proposal for promoting the email cache, and the like, he might have even more of a reason to argue that if the nominee, his father, saw nothing wrong with the activity, the son would not have known the legal risks that he was running.
But the campaign is an organization, an entity with independent legal obligations, and does not have any such defense or excuse. The rules apply to it, as they do to any “person.” It was a large organization, and it had available legal advice required to comply with the law. No lawyer consulted about the facts known to date would have rendered an opinion that these contacts were lawful.. Either the senior staff received advice that it disregarded, or chose not to ask for advice. The campaign’s vulnerability to criminal prosecution often escapes consideration in any discussions about the likelihood of criminal liability for these campaign finance violations.
And Donald Trump? The other day the president reflected on his flexibility in the choice of friends and adversaries and in patching up quarrels. He does not see himself as having any “permanent” enemies or adversaries. “I’m a very flexible person.” For this dealmaker, what drives him is his self-interest, and at any particular time, the benefits of cutting a deal. That his potential deal partner was the Russian government, and that the bargain would involve Kremlin support for his election, may not have struck the president as materially different from other agreements struck in his and a negotiating counterpart’s mutual interest. As the president stated in July of 2017 at a news conference, “I think from a practical standpoint most people would have taken that [Trump Tower] meeting” with the Russians.
In the end, the public record suggests that the candidate, aided by a number of the senior advisers, thought he could make a deal with the Russians. For all we know, Mr. Trump may be truly offended by prior administrations’ policies toward Russia and he believes that improved relations with Vladimir Putin serve the national interest. In 2015 and 2016, he also saw the potential for his campaign in this rapprochement. He entered into a political alliance with a foreign government and there is not much in his business career to suggest that he would sacrifice the gains he perceived in this relationship to the admonitions of his lawyers.
