Click here to read an account of the impeachment of executive officers below the President, and an analysis of whether that power reaches advisors to the President.
I have been having an ongoing debate with Professor Sam Buell, Professor Alan Dershowitz, and others about whether, based on currently available information, Mr. Trump may have violated federal obstruction of justice statutes in connection with the Russia collusion investigation and the firing of FBI Director James Comey. The technical point in contention has been the circumstances under which a president who delays or halts a federal investigation can be said to have acted with the required mental state of “corruptly.”
I have maintained that, given the president’s unique position at the apex of the executive branch, corrupt intent could only be proven if it were shown that, in acting to slow or stop an investigation, the president was not acting in good faith to promote the public interest, but was instead protecting his private interests. Such proof could include evidence that he knew or suspected that the investigation might implicate himself, his family, or close aides in wrongdoing. I expressed skepticism that the then-publicly-available facts were sufficient to establish that state of mind for Mr. Trump.
The recent revelations about the June 16, 2016, meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort, and a Russian lawyer they were told was representing the Russian government and was offering dirt on Hillary Clinton may change the calculus. As I discussed in my last post, that meeting might indeed prove to be technically criminal. It surely came close enough to a variety of legal red lines that, assuming Trump either knew of it in advance or came to know of it before he began to meddle with Mr. Comey and the Russian investigation, he would certainly have been worried that the Russian investigation would reveal the meeting and produce legal exposure for his family, his campaign staff, and possibly himself. That sort of thing would bridge the gap that has, so far, separated my view of the state of the evidence on obstruction from that of Professor Buell.
In recent days, the media has been full of reports about a meeting on June 16, 2016, shortly after Mr. Trump clinched the Republican presidential nomination, between Donald Trump, Jr., Jared Kushner, Paul Manafort (Trump’s then-campaign manager) and a Russian lawyer who was allegedly offering dirt on Hillary Clinton. New details emerged today in a New York Times story exposing emails that seem to show that Trump Jr. was told that the meeting would be with a “Russian government attorney,” and that “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”
As with many of the revelations about Trump campaign connections with Russia, the story is disturbing, at a minimum, as yet another illustration of the combination of naivete and B-movie skulduggery to which Mr. Trump’s family and retainers are so distressingly prone. But the newly disclosed email text threatens to take the matter to another level insofar as it seems to prove both that Trump’s children and campaign manager were told, expressly, that the Russian government was trying to help Trump and that they were willing to personally involve themselves in those efforts.
For purposes of this blog, the question is whether the meeting constitutes a criminal offense or any part of a case for impeachment of Mr. Trump.
Media reports on the meeting have spawned a swarm of commentary on its possible legal significance. I will focus here on two points: (1) whether the meeting might constitute a freestanding violation of 18 USC 371, the federal conspiracy statute, and if so, whether Mr. Trump himself would be implicated in such a case; and (2) whether the meeting might violate federal election law provisions barring soliciting something of value from a foreign entity. In my next post I will address briefly how this meeting might impact the ongoing discussion I have been having with Professor Buell, Professor Dershowitz, and others about whether Mr. Trump could, on present evidence, be guilty of obstruction of justice.
Conspiracy – 18 USC 371
Section 371 of Title 18 of the US Code is the general federal conspiracy statute. I say “general” because lots of other federal statutes have specific provisions making it a crime to conspire to violate them, but Section 371 is the omnibus federal conspiracy statute. It reads:
“If two or more persons conspire either 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, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”
The statute has two basic parts. The first, which prohibits conspiring “to commit any offense against the United States,” means that it is a felony to conspire to commit any other felony in the federal criminal code. For this part of the statute to come into play, a prosecutor must specify some other crime defined in some other federal statute that the conspirators agreed to commit.
The second part of Section 371, which prohibits conspiring “to defraud the United States, or any agency thereof in any manner or for any purpose” is of immediate interest because it makes it a federal felony to conspire to “defraud” the United States in ways that might not be criminal if done by a single person. “Neither the conspiracy’s goal, nor the means to achieve it needs to be independently illegal.” United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993).
“Running a free and fair Presidential election is a core lawful function of the federal government. Any agreement to secretly and dishonestly attempt to interfere with a federal election would fall squarely within section 371’s prohibition on conspiracies to defraud the United States.”
He has also argued in a recent Washington Post op-ed that the Trump Jr. – Russian lawyer meeting at the least lays critical groundwork for a charge that some subset of Trump campaign officials violated the “defraud the United States” clause of Section 371.
My primary reservation about proving a Section 371 conspiracy to defraud the United States in relation to the Russian lawyer meeting is that such a conspiracy generally requires proof of a traditional element of any fraud, which is false statement or dishonesty. As the Supreme Court held in Hammerschmidt v. United States, 265 U.S. 182, 188 (1924) :
“To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.”
I am not sure that a 371 “defraud the United States” offense would be committed if a political campaign openly sought unfavorable, but true, information about an opponent from a foreign government and, once the dirt was obtained, promulgated it without disguising its source. But that is not what happened here. Throughout the campaign, Mr. Trump and all his surrogates vigorously denied any contact or collusion with Russian representatives. The existence of such contacts has been revealed by journalists and other outsiders. If it could be shown that the Russian lawyer meeting was part of a pattern of conduct in which the Trump campaign solicited or encouraged the release by Russians or their surrogates of negative information about Secretary Clinton while keeping the campaign’s role secret, that in itself could satisfy the dishonesty element of a 371 “defraud the United States” conspiracy.
Moreover, if the activities of the Trump campaign, including but not limited to the Russian lawyer meeting, could be shown to violate another criminal statute, then the first clause of Section 371 comes back into play.
The newly revealed emails
The latest New York Times story certainly strengthens the case for a Section 371 conspiracy. It is one thing for a political campaign to seek negative information on an opponent. That sort of thing feels unseemly, but Trump Jr. is right that it is standard practice. Nonetheless, not all sources and means of securing such information are either normal or legal. For example, a political campaign could not burglarize the opposition’s headquarters to obtain such information (see, Nixon, Richard) nor extort it with threats. For an American presidential campaign to collaborate consciously and actively with a traditionally hostile foreign power to obtain negative information about an opponent is certainly a violation of every historical norm and could, without partisan exaggeration, be categorized as an attempt to subvert the American electoral process and thus to “defraud the United States.”
Donald Trump Jr. has claimed that the meeting produced nothing of substance and that it was terminated quickly. But for purposes of proving a Section 371 conspiracy, that would not matter. A conspiracy need not attain its illegal object to be prosecutable. It is sufficient that the conspirators agreed to achieve an illegal end and commit one overt act in furtherance of that object.
That said, the subject of this blog is presidential impeachment, so the question for our purposes is whether the Russian lawyer meeting exposes President Donald Trump, Sr., to criminal liability, and thus makes the commission of an impeachable offense more likely. The short answer is a cautious “maybe.” Even if one accepts that the meeting was part of a Section 371 conspiracy prosecutable against Donald Trump, Jr., Jared Kushner, and Paul Manafort, the essence of a criminal conspiracy is agreement between the conspirators, meaning that there must be an express or implied agreement between them to achieve the conspiratorial object.
Donald Jr. has claimed that his father “knew nothing of the meeting.” Even if true, this statement could mean any of a number of things. It could mean that Mr. Trump did not know of the Russian lawyer meeting in advance of its occurrence. It could mean that, while he did not know of it in advance, he was told about it later in the campaign season. It could mean that he never heard about it until after the election was over, or even that he first heard of it when it was disclosed in the media during the last week.
I confess to thinking it highly implausible that Mr. Trump did not know of this meeting either before or shortly after it occurred. His fascination with scurrilous gossip about his perceived enemies has been a well-known feature of his character for decades. And the idea that his son, his son-in-law, and his campaign manager would all take a meeting with a possible foreign source of dirt on Hillary Clinton and not tell him about it strains credulity.
That said, even knowledge of the meeting does not prove participation in a criminal conspiracy. More will need to be known before concluding either that the actual participants committed any crime or that Mr. Trump was part of a conspiracy to commit that crime. All we can say now is that the Russian lawyer meeting is likely to be of increasing interest as further revelations occur.
Federal Election Law Violations
A number of commentators have argued that the Russian lawyer meeting is a violation of federal election law. I do not know enough about that field to have an immediate opinion on the question (though I will be reading up). But if this view is correct, it would strengthen the case for a 371 conspiracy charge against the meeting’s participants and perhaps others by providing a separate crime that would constitute the “offense” necessary for prosecution under the first prong of Section 371.