What the law really says about collusion
Claims by Trump team don’t square with reality
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.