Jr's “Defender-in-Chief”
(Skate & thin ice come to mind)
“Can
it be a crime to do opposition research by asking foreigners for information?”
Introduction: Mr. Bauer’s analysis is
excellent. I have only posted the highlights below, so read check the entire article
for the full favor as it were of his complex analysis. The following is in Q&A format. Enjoy - I sure did.
Q: Do you think coordination is
potentially an appropriate term for what we’re seeing with the Trump Jr.
meeting?
A: It seems so. I’m not suggesting that all the
evidence is in or where it’s ultimately going to lead, but we have email
evidence today that somebody with ties to the Russian government, and known by
Donald Trump Jr. to have ties to the Russian government, advised that the
Russian government was looking to help his father, told him that somebody close
to the Russian government — described in an email as a Russian government
lawyer — was coming to a meeting to provide some benefit to the campaign. So I
don’t see how that isn’t coordinated activity. There’s a party who wants to be
helpful to the campaign — in this case, a foreign government — and the campaign
ascends to the help and sort of collaborates around, or communicates around,
what that help might be.
Q: There are two categories of laws that may
apply not just to Trump Jr., but to the Trump campaign and Russia’s
relationship as a whole: federal election laws and criminal conspiracy laws. Is
that correct?
A: Yeah, and the conspiracy laws connect to the
election laws. Because you would have a conspiracy, presumably, should the
evidence ultimately support it, to violate the campaign-finance laws. So, the
conspiracy would not be free-floating and independent, it would tie directly
into the violation of the campaign laws.
Q: With conspiracy laws, the crime is the
agreement itself to commit a crime. It doesn’t matter whether that effort
succeeds or is ever carried out.
A: That’s correct.
Q: Okay. Federal election laws say that foreign
nationals or foreign governments can’t contribute a “thing
of value” to a presidential
campaign. What does that actually mean?
A: “Thing of value,” anything of value, also
applies to contributions across the board, not just contributions from foreign
nationals.
And the theory behind it is fairly
straightforward, which is you can, for example, pay for a hall to hold a rally
in. Find the cash, pay the rental. Or the owner of the hall can just provide it
to you. And if the owner of the hall provides it to you, the owner of the
hall’s not providing you with cash, the owner of the hall is providing you with
a venue for an event and it’s fundamentally the same thing to you. It’s the
same value to you as if, in fact, you had purchased it yourself. So, the “thing
of value” limitation is designed to pick up so-called “in-kind” contributions.
Not just contributions as cash. Without it, the elections laws would basically
be made somewhat nonsensical. There would be no reason to have a contribution
limit if the easy way around it was to simply avoid paying cash and to simply
provide, in concrete form, whatever it was that the campaign wanted.
Q: So far, there is no evidence that the Trump
campaign had anything to do with the DNC hacks or John Podesta’s leaked emails
from last year – but are those things we can consider “things of value” during
a campaign?
A: The hacking of the material and then its
release into the public sphere?
Q: Yes.
A: I think you absolutely can confirm that as a
thing of value. President Trump at one point, as a candidate, called upon the Russians (see the video statement here) to locate the so-called deleted Secretary
Clinton emails and said, “I hope you find them.” Later it was said, “Well,
maybe he was joking.”
Well, now it turns out that the campaign was actively
looking for this and believed it was very important. I would stress in
particular that today the Russian lawyer, Natalia Veselnitskaya, said the
campaign wanted that material, or wanted negative information on Hillary
Clinton very badly.
An important part of the Trump campaign’s
strategy was to create major doubts about Hillary Clinton. You recall the
chants of “lock her up,” and President Trump at one point said he was going to appoint a
prosecutor, he was going to do a
direct prosecution of Clinton. And so any material that somebody could acquire
that would dramatically support those claims was of exceptional value to the
campaign. Whatever this lawyer promised might have been one thing, the stolen
emails might have been another.
But one way or the other, they were looking
for negative product they thought would be helpful to them on a matter of
central strategic significance to the campaign.
Q: How difficult would it be to litigate a “thing
of value” in court?
A: There’s a complicated line of cases and law
that have to do with “what does it mean to coordinate with an organization
that’s spending money.” Sometimes, the candidate says, “Well, I’m engaged in
free speech. The organization is engaged in free speech.” There has to be some
limit to how far you can regulate communication between allies.
So, I go to see somebody who I think is a
supporter and I tell that person something about my campaign that I’m trying to
accomplish. Three months later the supporter puts advertising on the air. The
supporter is going to say, “Well, that’s my free speech. I’m just taking
informed speech and putting it on the air.” I don’t know that you can see that
free-speech defense applying here. It seems to me – and I think there’s law on
this point – the foreign-national prohibition is for a very different purpose
and the free-speech interests here are significantly attenuated.
The purpose of the foreign-national
prohibition is to defend the larger political community, as a court recently
said. This goes to a fundamental question of defining and protecting what we
consider to be the political community entitled to participate in the choice of
our elected leaders, and so the breadth of the government’s interest, the scope
of the government’s interest, is very broad and very strong, and for that
reason some of the free-speech defenses in the coordination world, or in the
cases of coordination that you oftentimes see in the domestic sphere, don’t
have nearly that force. And I don’t think it ultimately would be upheld in the
case where we’re talking about involving a foreign government coordinating with
a campaign to win an election in the United States.
Q: And federal election laws also prohibit
U.S. nationals from providing substantial assistance to a foreign
national?
A: That’s correct. It prohibits U.S. nationals
from assisting foreign nationals in trying to influence an election.
Q: Does that cover trying — but
not necessarily succeeding — to provide substantial assistance?
A: I don’t know that it’s clear what constitutes
substantial assistance or whether it would be a liability to merely attempt to
provide substantial assistance. It’s certainly a conspiracy to violate the
election laws, as you pointed out.
It doesn’t have to end in a successful
attempt. It can be an attempt, in and of itself, to bring about the fulfillment
of a foreign national’s goals. If you assume that the Putin regime wants to
affect the outcome of the election and the Trump campaign wants to help them do
it, the Trump campaign believes it would be destabilizing to the Clinton
campaign. It would demoralize the Democrats. The Putin government is delighted
to do it because it wants to create a bit of chaos in the course of our
election.
And if the Trump campaign goes about actively
aiding the Russians in doing this, denying that they’re involved, refusing to
condemn them, reading the WikiLeaks emails, you can read all of that as a form
of providing substantial assistance to an effort that, we now know from the
emails, they understood that the Russian government was undertaking.
My
read on all this – as a follower and novice on the legal
entanglement we now see unfolding as the ultimate goal – at least that’s what I
see and I’m sure others do, too:
1st: Op Research in campaigns, yes, all the time –
but from a foreign government and their documented operatives – nope – no way,
Jose as they say.
2nd: “A thing or something of value” (illegal) –
what a loaded legal mumbo jumbo loophole definition that we now see in play.
3rd: Anything from a foreign source (like from
Russia, China, hell, even North Korea) must and should be taken with the
proverbial grain of salt and immediately reported to the FBI – w/o hesitation
or doubt about it. Jr. did not do that – what not? Obviously: he wanted “something
of value” to aid his father in winning, and if that came from Russia, so what.
No one would ever that or even suspect that, right?
“I love it” wait, what – damn, that’s what
Donnie Jr. said about the “gift” he thought he was getting. So, never mind.
There is nothing about this story to “love”
except maybe to see Donald J. Trump, Jr., Jared Kushner (after he loses his security
clearance is booted out the White House front door), and Paul Manafort, and then
the “big man” himself get full prosecution of the law and then jailed.
They
have earned prosecution, either by slick deals, or total incompetence – either way they
are all criminals and must face a jury.
Hopefully, Mr. Mueller sees it the same
way. Fingers crossed in that regard.
As always, thanks for stopping by.
