the law

Don Jr. Won’t Be Charged With ‘Collusion,’ But the Trump Team Could Be in Big Legal Trouble

His email creates a new front for liability. Photo: John Moore/Getty Images

First things first: No, Donald Trump Jr. won’t get charged with treason, and not even the most damning act of doing the Kremlin’s bidding will ever amount to treason because Russia is neither a declared enemy nor in a declared war with the United States. Full stop. Please don’t make treason a thing, and shame on you if you ever tried.

With that out of the way, it is worth pondering what other lesser crimes, legal or political, might have been committed by Trump Jr. Until last week he had not been a leading figure in the criminal and congressional probes into Russian meddling in the presidential election, including the possibility that the Trump campaign, or those close to it, may have been in cahoots with Vladimir Putin’s government to bring down their mutual nemesis, Hillary Clinton.

Trump Jr.’s fortunes and future changed dramatically last weekend, as a series of slowly developing yet brutal stories in the New York Times revealed that he played a central role in setting up a meeting with a Russian lawyer said to have “dirt” on Clinton that could be useful for his father’s campaign, which at the time had all but seized the Republican nomination and was setting its sights on the final stretch of the race. “I love it,” replied Trump Jr. when assured that the promised incriminating materials on the Democratic candidate amounted to “obviously very high level and sensitive information” that were “part of Russia and its government’s support for Mr. Trump.”

There’s little doubt that the lead Department of Justice official looking into Russia, Special Counsel Robert Mueller, will want to examine these email exchanges and the resulting meeting with Kremlin-connected lawyer Natalia Veselnitskaya, whom the communications with Trump describe as a “Russian government attorney” eager to take a flight from Moscow to discuss with him “official documents” the Russians had assembled to sink Clinton. The reason these buzzwords and quoted tidbits matter is their relevance to a question that has vexed investigators: whether there was a concerted effort by the Trump campaign to work hand-in-hand with Russia to tip the scales of the election.

American intelligence agencies told us some time ago that Putin’s goal was to get Trump in the White House, but this is the first time we’ve seen clear evidence — a smoking gun, if you will — that there may have been an untoward connection between someone in the president’s inner circle and the Russian government, and that the two may have worked in tandem to help the elder Trump in November. The word you keep hearing to describe this claimed alliance — right up there with treason in the parlance de #resistance — is collusion, an amorphous word that has very little value and meaning in federal criminal law. That’s why it’s common to hear Trump apologists assert with a high degree of confidence that collusion isn’t illegal or that it’s only forbidden in the antitrust context. Or that campaigns team up with others to procure opposition research on their political adversaries all the time, and thus you can’t go after someone for simply doing the stuff of politics. That’s all true.

But even before the Trump Jr. story broke, Bob Bauer, an election-law expert and former White House counsel for President Obama, had been quietly making a more nuanced and intriguing case, under existing campaign-finance laws and regulations, for the kind of quote-unquote collusion that Mueller and congressional investigators might be interested in. His analysis is extensive, and courts haven’t yet had a chance to test it, but it goes something like this: The law very clearly forbids American political actors from providing “substantial assistance” to a foreign government seeking to influence an election. If this assistance led the foreign government to provide a “thing of value” to the campaign, then the law was broken.

Bauer made this case back in June, going solely on publicly available evidence, such as when then-candidate Trump famously called on the Russians to help locate deleted emails from Clinton’s home-brew server — a call that, curiously, came only weeks after Trump Jr.’s disappointing meeting with Veselnitskaya, which was also attended by his brother-in-law Jared Kushner and then–campaign manager Paul Manafort. Under a broad reading of the ban on “substantial assistance” to a foreign power, the Trump campaign did all it could to egg on the Russians to keep doing what they were doing. And the campaign benefitted mightily from it.

This opens up a new front for liability. Not only may Trump Jr.’s procurement of a get-together with a Russia-linked lawyer for the purpose of obtaining incriminating dirt on Clinton meet the bar for “substantial assistance” to a foreign national seeking to influence the election, but under a different set of campaign-finance regulations, the procurement itself may break the law as a type of illicit coordination with Russia. How? If the Trump campaign actively worked with Kremlin associates so that they spent their resources to aid the campaign, then the Russians effectively made a campaign contribution forbidden by law.

Trump Jr.’s interest in the damaging Clinton materials could certainly meet that criteria. “Now, in a meeting scheduled with a Russian national with ties to the Putin regime, the campaign made clear that it was actively interested in having this kind of information,” Bauer wrote in a follow-up analysis posted on the national-security blog Just Security.

But there’s more: Trump Jr. may have also violated the law’s prohibition on “soliciting” something of value from a foreign power. And on this point, the agency that promulgated the prohibition, the Federal Election Commission, left enough room to cover even implicit solicitations:

To solicit means to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value. A solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value. A solicitation may be made directly or indirectly. The context includes the conduct of persons involved in the communication.

Unlike federal criminal laws, FEC regulations are often construed expansively, so it’s possible that Mueller and others will have a field day with the latest bombshells. Of course, none of these potential violations would land the younger Trump in prison, nor should they. But that’s not the crux of the new revelations. The point of it all is to establish something Donald Trump Sr. has denied vehemently: that his campaign indeed had much to gain from Russian involvement in the presidential election, and that those close to him were willing to go to great lengths to get it.

Then again, Trump Jr. has since lawyered up, and the journalists who first broke the story are still reporting. The Times reported on Tuesday night that Trump personally signed off on his son’s initial statement about the meeting. For all we know, this may be the beginning of a new chapter that could very well reach the president himself. After all, he expressed a deep interest in Clinton’s deleted emails on the very same day his son, in a Trump Tower meeting, may have been looking for just that.

No ‘Collusion’ Charge, But Trumps May Face Big Legal Trouble