What counts as a crime
Aman in a Fayetteville audience challenged me when I said that Special Counsel Robert Mueller, if he were bold enough, could recommend charges against President Trump and his eldest son on two things we know already.
One was that Trump asked then -FBI director James Comey to drop an investigation extending to Trump’s ousted national security adviser, Michael Flynn. You could call that attempted obstruction of justice, if you were a stickler.
The other was that Donald Trump Jr. took the meeting when Russian sources offered damaging information against Hillary Clinton. You could call that soliciting foreign meddling in our election, if you remained a stickler.
A local violin-maker in Fayetteville wanted to know what was conceivably a crime in seeking facts no matter the source’s residence.
When I said there was a perfectly logical federal law against it, based on the premise that foreign intervention could be perilous to American interest, he asked me to cite it. I was unable to do so, but promised to get back with him, which I did by email last week.
Section 30121 of Title 52 makes it a crime for any foreigner to donate money or some “other thing of value” in connection with an American election, or for any American to so solicit from a foreigner.
But the gentleman’s challenge has been on my mind ever since. And that was even before we learned that the Clinton campaign and the Democratic National Committee had helped pay for a British spy to investigate Trump’s dealings in Russia.
The campaign and DNC turn out to have paid a law firm that then hired an opposition-research firm that a rich conservative donor’s nonprofit website, the Washington Free Beacon, had formerly retained to probe Trump and other Republican presidential candidates.
The opposition-research firm then hired the former British spy to probe Russian sources.
The spy produced a wide-ranging dossier that included unconfirmed lurid and salacious charges against Trump.
The general issue, then, is whether seeking or accepting potential dirt on your opponent from a Russian is soliciting a “thing of value.”
The value is certainly not quantifiable. But courts have said a “thing of value” in other contexts can include intangibles.
Now we confront three other questions:
1. Are these competing allegations generally equivalent?
2. Are they cross-canceling in that it acquits one to point out that a rival acted similarly?
3. Is Mueller discredited as anti-Trump and pro-Clinton, as Republicans assert, because he has interviewed the British spy?
First, there are differences. No known specific foreigners offered the Clinton campaign anything. The Clinton campaign had a less direct Russian connection.
There is the separate matter of the Clinton campaign and the DNC lying to the media for months about having anything to do with a dossier we now learn they helped pay for—unless they truly had no idea what the law firm was doing with the millions paid to it.
So far, that looks like standard Clintonian dissembling and less than a criminal cover-up, which requires abuses of law such as lying under oath.
The Clinton campaign finance reports listed only a near-million-dollar outlay to the law firm for “legal expenses.” Misleading campaign finance statements are usually civil Federal Election Commission regulatory matters punishable by fines. The FEC could refer a matter to the Justice Department as a potential criminal matter. Mueller could, and should, consider the entire matter as potentially criminal.
The cases are similar enough for the political partisan’s banal defense of, “Hey, he did it, too.” But, as the second question poses, is that a meritorious defense?
It isn’t. Children have been trying it for centuries, seldom prevailing.
That Trump is alleged to have ties to Russians who favored Trump and meddled in his behalf … that’s its own issue.
Conversely, Democrats argue that Trump supporters invoke the British spy issue only to distract from the allegations against Trump. But that has nothing to do with the substantive worth of the allegations against the Clinton campaign.
How about all of us being responsible for our own actions?
Third, it in no way discredits Mueller to have used the former British spy’s work as a superficial or beginning resource. That’s a simple investigative step.
Mueller is an esteemed pro’s pro— Princeton-educated and a decorated Marine combat veteran of Vietnam who headed the FBI both in the Obama and second Bush administrations.
Meantime, the Congress, were it functioning, ought to work on a clearer statute. Do we want to make it expressly illegal for an American political campaign to interact directly or indirectly with foreigners? If not, where do we draw lines?
If, say, a Canadian policeman had called Trump Jr. to say Hillary had once been drunk and disorderly at Niagara Falls, would Trump Jr. be guilty of a crime for having taken the call?
A violin-maker and I want to know.