What the law re­ally says about col­lu­sion

Claims by Trump team don’t square with re­al­ity

The Arizona Republic - - USA TODAY - Robert Far­ley

In a re­cent tweet, Pres­i­dent Don­ald Trump said the Trump Tower meet­ing between his son and other cam­paign of­fi­cials and a Rus­sian at­tor­ney con­nected to the Krem­lin, which Trump ac­knowl­edged was “to get in­for­ma­tion on an op­po­nent,” was “to­tally le­gal.”

Or, as his at­tor­ney Jay Seku­low put it on ABC’s “This Week” on Aug. 5: “The ques­tion is, ‘What law, statute or rule or reg­u­la­tion’s been vi­o­lated?’ No­body’s pointed to one.”

But some le­gal ex­perts dis­agree. They ar­gue the June 9, 2016, meet­ing may have vi­o­lated elec­tion laws or could have amounted to con­spir­acy to de­fraud the gov­ern­ment.

“Don’t be fooled by word games,” Vic­to­ria Nourse, a pro­fes­sor at Ge­orge­town Law, said in an email. “There is no le­gal term ‘col­lu­sion.’ The le­gal term for col­lu­sion is the crime of con­spir­acy.”

Stephen Schul­hofer, a law pro­fes­sor at New York Univer­sity, said the act of col­lu­sion can be ei­ther be­nign or crim­i­nal, de­pend­ing on the cir­cum­stance.

“One of the most com­monly used pro­vi­sions of the U.S. Code, 18 USC 371, makes it a fed­eral crime for two or more peo­ple to con­spire ‘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,’ ” Schul­hofer said. “Col­lud­ing with the Rus­sians, i.e. agree­ing to co­op­er­ate, en­cour­age or as­sist them in any way in pur­su­ing any­thing they were do­ing that was il­le­gal, is most cer­tainly a crime.”

Or, as David Sk­lan­sky, who teaches crim­i­nal law at Stan­ford, said, “Whether it is a crime de­pends on what you are col­lud­ing about.”

He also chal­lenged Trump at­tor­ney Rudy Gi­u­liani’s as­ser­tion that the only crime was the hack­ing of DNC servers.

Hack­ing is one crime, he said, but you don’t have to be guilty of hack­ing to be guilty of ob­struc­tion of jus­tice or crim­i­nal con­spir­acy or so­lic­it­ing a for­eign agent in a cam­paign.

Paul Manafort, then Trump’s cam­paign chair­man, and Jared Kush­ner, Trump’s son-in-law, met at Trump Tower with Rus­sian lawyer Natalia Ve­sel­nit­skaya, who The New York Times said “has connections to the Krem­lin.”

In emails ex­changed with Trump Jr. to ar­range the meet­ing, mu­sic pub­li­cist Rob Gold­stone said the meet­ing was to “pro­vide the Trump cam­paign with some of­fi­cial doc­u­ments and in­for­ma­tion that would in­crim­i­nate Hil­lary (Clin­ton) and her deal­ings with Rus­sia and would be very use­ful to your fa­ther. This is ob­vi­ously very high level and sen­si­tive in­for­ma­tion but is part of Rus­sia and its gov­ern­ment’s sup­port for Mr. Trump.” The younger Trump re­sponded, say­ing that “if it’s what you say I love it es­pe­cially later in the sum­mer.”

The fol­low­ing year, when the Times broke the story of Don­ald Trump Jr. ar­rang­ing the meet­ing, the younger Trump re­leased a state­ment say­ing it was a “short in­tro­duc­tory meet­ing.” He said, “We pri­mar­ily dis­cussed a pro­gram about the adop­tion of Rus­sian chil­dren that was ac­tive and pop­u­lar with Amer­i­can fam­i­lies years ago and was since ended by the Rus­sian gov­ern­ment, but it was not a cam­paign is­sue at the time and there was no fol­low up.”

The fol­low­ing day, when the Gold­stone emails came to light, Don­ald Trump Jr. said Ve­sel­nit­skaya “stated that she had in­for­ma­tion that in­di­vid­u­als con­nected to Rus­sia were fund­ing the Demo­cratic Na­tional Com­mit­tee and sup­port­ing Mrs. Clin­ton. Her state­ments were vague, am­bigu­ous and made no sense. No de­tails or sup­port­ing in­for­ma­tion was pro­vided or even of­fered. It quickly be­came clear that she had no mean­ing­ful in­for­ma­tion.”

The Fed­eral Elec­tion Cam­paign Act pro­hibits for­eign na­tion­als, ei­ther “di­rectly or in­di­rectly,” from mak­ing “a con­tri­bu­tion or do­na­tion of money or other thing of value” to a cam­paign. It also makes it il­le­gal for a per­son to “so­licit, ac­cept, or re­ceive a con­tri­bu­tion or do­na­tion” from a for­eign na­tional.

The key part re­gard­ing the Trump Tower meet­ing may hinge on the phrase “other thing of value.”

“Yes, there could be crimes here,” Sk­lan­sky said. “So­lic­it­ing cam­paign as­sis­tance from a for­eign agent is il­le­gal, although it is un­clear whether op­po­si­tion re­search counts as as­sis­tance.”

Bob Bauer, a for­mer White House coun­sel un­der Pres­i­dent Barack Obama who now teaches at New York Univer­sity Law School, ar­gued in The Wash­ing­ton Post that it does, in this case, count as a “thing of value.”

“The statute’s writ­ten very, very broadly. It ap­plies to prom­ises of sup­port ... ex­press or implied,” Bauer said.

But not all le­gal ex­perts agree that dam­ag­ing in­for­ma­tion on Clin­ton would be deemed a “thing of value” for le­gal pur­poses. In a blog post for The Wash­ing­ton Post, Eu­gene Volokh, a law pro­fes­sor at UCLA, ar­gues that if “po­lit­i­cally use­ful in­for­ma­tion about a can­di­date’s op­po­nent is in gen­eral a thing of value,” then the law is legally “sub­stan­tially over­broad” and un­con­sti­tu­tional.

Even if it were de­ter­mined that the op­po­si­tion re­search of­fered by the Rus­sians did not amount to a “thing of value,” it doesn’t mean Trump Jr. and oth­ers are in the clear, Sk­lan­sky told us.

“Con­spir­ing to hide cam­paign ac­tiv­ity from the (Fed­eral Elec­tion Com­mis­sion), or con­spir­ing to hide the ac­tiv­i­ties of a for­eign agent from the (De­part­ment of Jus­tice), could be a con­spir­acy to de­fraud the United States,” he said.

And then there is the ques­tion of ob­struc­tion and whether Trump Jr.’s ini­tial, mis­lead­ing re­sponse about the meet­ing’s pur­pose – which Trump’s le­gal team later ac­knowl­edged the pres­i­dent “dic­tated” – could be con­strued as part of a pat­tern of ob­struc­tion.

Al­most all le­gal schol­ars, how­ever, warn not to put much stock in the re­cent claims by Trump and his at­tor­neys that “col­lu­sion is not a crime.”

“Don’t be fooled by word games.” Vic­to­ria Nourse, Ge­orge­town Law School


Don­ald Trump Jr.’s ini­tial, mis­lead­ing state­ment to the me­dia – ap­par­ently dic­tated by his fa­ther – could be con­sid­ered ob­struc­tion of jus­tice.

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