It May Not Be Treason, But It’s Still Illegal

It May Not Be Treason, But It’s Still Illegal

Early Tuesday morning, Donald Trump Jr. took to Twitter to release what is ostensibly the entire email chain of his conversation with Robert Goldstone about whether he would like to meet with someone on behalf of the “Crown prosecutor of Russia” to provide “official documents and information that would incriminate Hillary” to the Trump campaign. In the initial email, for which no subject line was reported by the New York Times, Goldstone even asks if this information should be sent Trump Sr. The initial email also stresses that this is “part of Russia and its government’s support for Mr. Trump.” A few days later, the email chain has a subject line: Russia – Clinton – private and confidential

First, the obvious. The narrative pushed by Trump and his family that no interaction between the campaign and any Russian operatives, which has been thoroughly debunked time and again, has completely collapsed. The question of whether or not there was contact, collusion, an attempt at collusion, etc. is settled. There was. The only questions that remain now are to what extent, and what did Trump know and when did he know it.

For months, the story has been falling apart anyway. It began with, “There were no meetings,” and was quickly followed by, “Ok, there were some meetings, but they were in the capacity of official business not related to the campaign,” before finally settling on, “Well, even if some campaign material was discussed, it was always above board and never bordered on seeking or accepting help.” Tuesday, the goalposts may have finally been planted in a fixed location.

Despite the emails and their seeming confirmation of, at least, an attempt at collusion, there is still much that we don’t know for certain. For instance, was there anything of value actually discussed at the meeting once it finally took place? Did Paul Manafort and Jared Kushner actually attend the meeting? Did Trump Sr. know about the meeting? Was the Russian lawyer that showed up even in the country legally? Sen. Chuck Grassley has asked this question to the State Department, noting that she had a parole visa that expired in January and an extension was denied. But, the big question on everyone’s lips seems to be, is this treason? After the release of the emails, many people across the internet, and some in Congress, have started to use the T word. But, is it treason?

Probably not.

Treason is the only crime that is explicitly spelled out in the Constitution. It is defined as “only in levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.”

In a rather abstract way, one could argue that colluding with a foreign power to elect a president sympathetic to that foreign power constitutes aid and comfort, but this is unlikely to hold up. The obvious beneficiary of Jr.’s actions would be his father, not Russia. Even if there was something of value in the meeting, and that something was used to benefit the Trump campaign, there is still no guarantee that Trump would act only to the benefit of Russia at the total detriment of the United States. While it may come to pass that Trump’s policy positions, such as they are truly positions and not gut feelings fostered by a man with no understanding of policy do harm several of the citizens of the United States, they will most certainly benefit other citizens of the United States and may or may not harm the country as a sovereign nation. So, that’s probably out.

But, just because Jr.’s actions may not necessarily be treason doesn’t mean that they weren’t illegal. To fully understand the scope of what was revealed on Tuesday, we have to understand just what laws may have been violated.

First, would be the question of disclosure. Under 36 U.S. Code § 510 (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(C), and (c), it is illegal to not declare any such acceptance of money or something of value within 90 days of the inauguration of the president that is valued individually or in the aggregate over $200, and it is illegal to accept any money or something of value from a foreign national.

Trump, Jr., Sessions, Flynn, and a slew of others have failed, over and over again, to accurately report on their meetings with various Russian officials throughout the campaign and the transition. Often, the excuse is that they simply forgot. Ignoring the implications that they are lying, it should be troubling that the entire administration and the campaign operatives that put them there cannot remember meetings that occurred only a scant few months prior. If they are truly this forgetful, if their minds are so shot, they shouldn’t be running the country. But, is it more likely that they forgot, or that they knowingly withheld information?

Second, is the question of something of value. As you may have noticed, I have used this phrase above more than once. There is a reason for this. Under 52 U.S. Code § 30121 (a)(1)(A), (a)(2), (b)(1), and (b)(2) it is illegal for a campaign or committee to solicit or accept any contribution of money or thing of value from a foreign national. While it remains, at this point, an accepted fact that the Trump campaign did not accept or ask for money from any foreign national or government, they, under the direction of Jr., with the knowledge of Manafort and Kushner attempted to accept information – and possibly asked for it – from a foreign national. Information that may be damaging to a rival campaign that is otherwise not public knowledge may constitute something of value.

It is true that the phrase, “something of value” is broadly worded and poorly defined, but this is actually in the interests of protecting the integrity of the elections in the United States. This allows for that thing to be something other than, say, an expensive table lamp. Information about another candidate is certainly considered valuable, if not for the obvious reasons that it may help to swing an election, but for the fact that candidates, their campaigns, and the committees that work on their behalf often pay big money for the gathering and dissemination of that information. Although, this is typically done in far more legal ways such as using a private investigator to dig through public records and/or surreptitiously gather photos, videos, soundbites, or testimony from other Americans. This is, when done correctly, i.e. not relying on foreign governments to provide the information, totally legal, all ethical questions aside. An example would be gathering information about previous run-ins with the law, extramarital affairs, or college transcripts.

Third, would be the definition of solicitation. Solicitation is defined, legally, as asking someone to engage in a certain behavior. As far as civil or criminal law goes, this behavior must be illegal. If Jr. was asked to accept this information, which would fall under the definition of something of value, from a foreign national, then he was being solicited. If Jr. accepted this invitation, he was guilty of accepting, even if the trade off never actually occurred. Consider, for the moment, a prostitute who is asking random people to engage in sex for money. They are soliciting prostitution. If someone accepts that offer, they are guilty of engaging in prostitution, even if the prostitute never performs the sex act. This gets in to the question of intent.

In many laws, there is the question of intent. Again, consider another example. If someone goes into a bank and attempts to rob the bank, but is only given a bag full of dye packs, did they commit a crime? Of course. Now, consider that this was a plot hatched by more than the one person. This is where conspiracy comes into play. 18 U.S. Code § 371 makes it illegal for two or more persons to engage in a plot to commit any offense towards or attempt to defraud the United States. Even if the conspiracy fails, even if the plot does not go forward, the persons involved are guilty of conspiracy.

This is where we are. Jr. may not have actually received any information from the Russian lawyer. It is not clear that the lawyer that he thought he was meeting was actually the lawyer that showed up. Nevertheless, he was offered information, something of value; by a foreign national, the Russian lawyer; and he accepted. He then CC’d Manafort, the campaign director at the time, and Kushner, Trump Sr.’s son in law, and asked them to attend. You now have, by definition, a conspiracy to defraud and commit an offense against the United States by accepting something of value from a foreign national as a campaign contribution, which was not only not given a monetary value in the individual or aggregate; and was not reported within 90 days of the inauguration. These are very serious offenses.

Jr., and by extension the Trump campaign and the Trump administration, which has continued to employ members of this group and their families may not have committed treason, as it is defined in the Constitution, but they very likely committed a series of interrelated federal crimes. When ones considers all this new knowledge in conjunction with Trump’s very public declaration on national live TV that he fired Comey specifically due to the investigation into these matters, we are now looking at not only a conspiracy to subvert the election, but a knowing and intended obstruction of justice.

Again, intent matters. Would Comey have uncovered all this stuff on his own? Maybe. Maybe not. But, Trump’s firing of Comey, as well as other prosecutors and investigators for even looking into it, shows an intent. As far as the law is concerned, that’s all that matters. Obstruction does not need to succeed, it only needs to be attempted. The same is true for all of these offenses. Jr., on Tuesday, just openly admitted to all of them, and gave the country the smoking gun to prove it.

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