What counts as a crime

Northwest Arkansas Democrat-Gazette - - VOICES - John Brum­mett John Brum­mett, whose col­umn ap­pears reg­u­larly in the Arkansas Demo­crat-Gazette, was in­ducted into the Arkansas Writ­ers’ Hall of Fame in 2014. Email him at jbrum­mett@ arkansason­line.com. Read his @john­brum­mett Twit­ter feed.

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 thenFBI 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.

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