By Lynda Bryant-Work
Collusion. Collusion. Collusion. The collusion drama plot thickens.
The tangled web between President Donald Trump and Russia continues to get darker and the Jerry Springer-like antics of the president on Twitter and misinformation cloud the issue.
As most know, Donald Trump Jr., the president’s son, revealed that he, along with Trump’s campaign manager, Paul Manafort, and the president’s son-in-law, Jared Kushner, chairman for his 2016 presidential election campaign, met with a Russian government lawyer, Natalia Veselnitskaya, in June of 2016.
Prior to the meeting, a mutual friend of Trump and a former Russian business partner who is a close ally of Russian President Vladimir Putin, emailed Trump Jr., letting him know that Veselnitskaya would provide official documents and information that would implicate Trump’s opponent, Hillary Clinton and her “dealings” in Russia.
Trump Jr. responded to the potential meeting with, “If it’s what you say I love it, especially later in the summer” and agreed to meet with Veselnitskaya.
Soon after, Trump Jr., Manafort, and Kushner all met with Veselnitskaya on the 25th floor of Trump Tower for 20 minutes. According to Trump Jr., the meeting was useless. More than a year later though, Trump Jr.’s revelation has unleashed a tidal wave of speculation about what happened and the legal ramifications of this meeting.
Now it seems Trump allegedly approved the meeting. Trump former personal lawyer Michael Cohen is willing to testify to Special Council Robert Muller that Trump was aware of the meeting and approved it.
Getting past all the talk, accusations and speculation, were there any laws broken? And if so, what laws would those be?
The charge of collusion has been tossed around for months and months, but what exactly is “collusion” and is it illegal?
The term “collusion” is defined as “concerted activity toward a common purpose.”
The colloquial connotation of the word indicates that people who “collude” have worked together, usually in secret, to do something illegal. Still, other than in an antitrust context, “collusion” is not the name of a crime.
Former federal prosecutor Andrew McCarthy wrote that “collusion is a hopelessly vague term.” There is no federal law that criminalizes collusion between a political campaign and foreign government. In this sense, collusion is viewed as a political term and not a legal term. The key here is the evidence of this meeting and alleged content to prosecute other crimes.
Campaign Finance Law Violations
The campaign election law that is implicated here is 52 USC § 30121. There are two relevant parts of the statute.
The first is Part (a)(1)(A), which reads:
“It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.”
This law extends beyond cash donations, as evident by the “other thing of value” language. Paul Rosenzweig, a former deputy assistant secretary for policy at the Department of Homeland Security, writes that “opposition dirt is at least plausibly a thing of value.”
The “opposition dirt” Rosenzweig refers to is damaging information that the Russian government may have collected about Hillary Clinton and her dealings in Russia. In other contexts, federal courts have broadly interpreted the phrase “thing of value.”
Courts have held that “thing of value” includes intangibles, such as amusement, sexual intercourse, a promise to reinstate an employee, and information, so it is not inconceivable this could be interpreted to include damaging information on an election opponent.
The second part is (a)(2) of 52 USC 30121. That part provides:
“It shall be unlawful for—
(2) a person to solicit, accept, or receive a contribution or donation… from a foreign national.”
The word “solicit” has a very specific meaning in this context. Election law expert Rick Hasen has said that “solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”
If Trump Jr. asked Veselnitskaya to provide “anything of value” on Clinton, then it could be found that he illegally solicited a foreign national to provide a campaign contribution, even if he was not successful. The meeting itself could qualify as a crime of solicitation because something of value was coming from a foreign national associated with the Russian government.
Making False Statements
Section 1001 of Title 18 of the United States Code makes it a federal crime to “knowingly and willfully” make any false, fictitious, or fraudulent statement or representation to conceal material information “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”
Kushner, a senior advisor to Trump, could be charged with making false statements if he had deliberately omitted the fact that he had met with a Russian official in completing his security clearance forms.
When filing an application to gain his security clearance, Kushner was required to disclose any meetings and contacts with foreign nationals. When he initially filed his application, he did not disclose the June meeting. This omission on Kushner’s part could qualify as a crime under Section 1001.
Kushner might say he accidentally forgot to disclose the meeting as the statute requires criminal intent, but it would be difficult to successfully assert this defense. The email thread setting up the meeting had a heading of “Russian-Clinton-private and confidential.”
“Conspiracy” is a “catch-all” crime that applies to plans to commit many different types of illegal acts. A conspiracy is an agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal.
The general federal conspiracy statute is 18 U.S.C. § 371 and reads:
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”
Applying this to the case, the participants in the meeting could be guilty of conspiracy even if they committed no crimes but conspired with to break laws.
If it can be established that the Russian government intended to illegally help the Trump campaign by providing compromising and damaging information about Clinton on behalf of the Russian government and agreed to work together to achieve an illegal goal, then conspiracy may apply.
It could be argued that Trump Jr. and his associates violated this federal law because they agreed to meet with Veselnitskaya to gain knowledge that would defraud the United States, which includes conspiracies to impede the lawful functions of the federal government.
If Trump Jr. and the Russian attorney had agreed to share damaging information regarding the Democratic candidate, then this could impede the administration of a presidential election, which is a lawful function of the federal government.
The meeting having occurred, although it might not be enough to demonstrate that a conspiracy has taken place – it still opens the door to investigate the possibility. Prosecutors need to present evidence provided through electronic discovery collection of emails and grand jury testimony that there was more collaboration, discussion, and cooperation with the Russians.
It is unclear if interfering with an election (even with false information) constitutes the crime of fraud. In United States v. Gradwell, a 1917 case, the United States Supreme Court held that a conspiracy to influence a congressional election by bribery of voters was not a conspiracy to “defraud” the United States under the meaning of the code since it is the state governments, not the federal government, that administer elections.
Also, promoting or disseminating false information about a political candidate is political speech protected by the First Amendment. According to a decision by the Supreme Court in 2012, the United States v. Alvarez, false political statements are protected speech, a holding that “comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”
Just showing that the Russians intended to lie about Hillary Clinton would be insufficient. The government would have to show that they intended to commit a more specific federal crime to implicate the Trumps.
The outcome remains to be seen.