Yes, Crimes Were Committed

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Yes, Crimes Were Committed

Why Jared's in big trouble. And Trump and Junior, too.

Donald Trump Jr. arrives at Trump Tower in New York City. The president's son is under fire for meeting with a Kremlin-connected lawyer during the campaign. (Photo: John Moore/Getty Images)

On several Sunday talk shows, Trump’s lawyer Jay Sekulow vigorously denied both that Trump had known last summer about the June 9 meeting (among Donald Trump, Jr., Jared Kushner, Paul Manafort, Kremlin-linked attorney Natalia Veselnitskaya, translator Anatoli Samachornov, Russian businessman Ike Kaveladze, and prominent Russian-American lobbyist and former Soviet military officer Rinat Akhmetshin) and that this meeting was illegal. But at least on the second point, Sekulow is dead wrong. And the first point is highly suspect.

Publicist Rob Goldstone, the individual who first proposed the meeting, made its purpose quite clear in his initial June 3 email: "to provide the Trump campaign with some official documents and information that would incriminate Hillary [Clinton] and her dealings with Russia." Goldstone added that this incriminating material "would be very useful to your father" and "is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump."

If Donald, Jr. had attended the meeting and successfully obtained these incriminating "documents and information," he would have violated Federal Elections Campaign Finance Law – specifically 52 U.S.C.A. § 30121, which makes it "unlawful for … (2) a person to solicit, accept, or receive a contribution or donation [of money or other thing of value in connection with a Federal election] … from a foreign national."

We have some evidence that Donald, Jr., Kushner, and Manafort did successfully obtain this information at the meeting. According to Akhmetshin, Veselnitskaya left the three Americans with a plastic folder containing documents detailing the flow of illicit funds to the Democratic National Committee (DNC).

But even if Akhmetshin were mistaken here, the three Americans' (supposedly failed) effort to obtain these incriminating "documents and information" itself amounts to both solicitation of, and a conspiracy to receive, an illegal campaign contribution. Conspiracy merely requires an agreement to attend the meeting for an illegal purpose plus an "overt act" such as actually attending the meeting; the meeting does not have to be successful. Solicitation is equally "inchoate" (incomplete); their request for an illegal campaign contribution is still a crime even if it went unsatisfied.

If Trump himself was informed about the illegal meeting before it took place and did not try to prevent it, then he became a co-conspirator. We do have some evidence that Trump both knew about and supported the meeting. On June 7, only a few hours after Donald, Jr. confirmed the meeting for June 9, Trump announced during his victory speech that he would be making a "very informative and very, very interesting" speech the following week about "all of the things that have taken place with the Clintons."

If Trump learned about the illegal meeting after it took place and actively tried to conceal it from the FBI—such as when Trump signed off on Donald, Jr.'s lie that the meeting had been entirely about adoptions—then he would be an accessory after the fact, which involves "knowing that an offense against the United States has been committed [and] receiv[ing], reliev[ing], comfort[ing] or assist[ing] the offender in order to hinder or prevent his apprehension, trial or punishment ...”

In a transparent effort to keep moving the goalposts, some of Trump’s apologists have been suggesting that even if Donald, Jr., Kushner, and Manafort agreed with Veselnitskaya to repeal the Magnitsky Act (a law passed in 2012 imposing sanctions on Russian officials who were thought to be responsible for the death of Sergei Magnitsky) in exchange for the Russians’ agreement to leak hacked emails of top Democrats, this "collusion" still wouldn’t amount to a crime. Once again, they are wrong.

This collusion would violate not only the Campaign Finance Law above but also two other statutes. First, the Logan Act, 18 U.S.C.A. § 953, which prohibits "[a]ny citizen of the United States … without authority of the United States" from "directly or indirectly commenc[ing] or carr[ying] on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States …"

Second, the Computer Fraud and Abuse Act, 18 U.S.C.A. § 1030, which prohibits conspiring to "intentionally access a protected computer without authorization, and as a result of such conduct, causes damage and loss." This charge would only be strengthened by evidence that Trump's digital operations team, which Kushner directed, helped Russian cyber-operatives bombard certain critical areas of the electorate with fake news about Hillary. Investigators for the House and Senate Intelligence committees and the Justice Department are hunting for this evidence now, motivated by the belief that the Russians would simply not have known which areas to target without knowledgeable Americans' assistance.

(Some have gone so far as to argue that all of this collaboration with the Russians would amount to treason. According to 18 U.S.C.A. § 2381, a person commits treason when, "owing allegiance to the United States, [he] levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere …" While the statutory language is arguably satisfied here, the gravity of the charge probably requires more evidence of "adhering" to Russia or "giving them aid and comfort.")

We have good reason to believe that this deal—leaking damaging emails in exchange for lifting sanctions—did indeed take place. First, Donald, Jr. suggested in his initial response to Goldstone on June 3 that the incriminating "documents and information" about Hillary should be leaked "later in the summer." This is exactly what happened.

Second, Kushner and Mike Flynn, Trump's former National Security Advisor, both engaged in many subsequent communications with the Russians, a fact indicating that future collaboration was agreed to or at least encouraged at the June 9 meeting. Indeed, on February 13, Flynn resigned his position as National Security Advisor for (allegedly) falsely informing Vice President Mike Pence that his communications with the Russians did not concern lifting sanctions.

On his security clearance form (SF-86), the first of which Kushner filed on Jan. 18, he omitted over a hundred foreign contacts during the campaign and transition, including not only the June 9 meeting with Veselnitskaya (a meeting that Kushner also omitted on the second submission of his SF-86) but also meetings with Russian Ambassador Sergey Kislyak. At one of these meetings, Kushner asked Kislyak if the Trump team could establish a direct line of secure communication from the White House to the Kremlin using Russian diplomatic facilities. This proposal inches Kushner closer to violations of both the Espionage Act, 18 U.S.C.A. § 793, which prohibits disclosure of classified information "to the advantage of any foreign nation," and the Foreign Agent Registration Act, 22 U.S.C. § 612, which prohibits acting as "as an agent of a foreign principal" without full disclosure to the U.S. Attorney General.

Kushner also omitted meetings with Sergey Gorkov, the CEO of Vnesheconombank (VEB), a state-run Russian bank under U.S. sanctions. In 2010, VEB bought $850 million of stock in a Ukrainian steelmaker (Zaporizhstal) from billionaire Russian-Canadian developer Alexander Shnaider, who was constructing the Trump International Hotel and Tower in Toronto at the time.

Kushner’s omissions were intentional and therefore perjury, in violation of 18 U.S.C.A. § 1621. Given the great number of these contacts, it is impossible to believe that Kushner forgot all of them the first time and the incredibly significant June 9 meeting both the first time and the second time.

In response to all of these accusations, Trump and his surrogates have offered a number of defenses. They have suggested that former FBI Director James Comey illegally leaked classified information. Even if it were true (which it isn’t), this is not a defense but an irrelevant distraction. They have suggested that many or most others would have taken the meeting. Even if true, this defense no more works for felonies than it does for speeding and shoplifting. Finally, they have suggested that Democrats are just bitter that they lost the election. Even if true, this is at best a political defense, not a legal defense.

All of this is to say nothing of the many other crimes that Special Counsel Robert Mueller is likely investigating, including more instances of perjury, false statements to the FBI, money laundering, tax evasion, bribery, racketeering, and obstruction of justice. Nor does this legal analysis depend on the many falsehoods that Trump and his staff have uttered in all their public responses to questions about Trussia-gate. Fortunately for them, but unfortunately for the rest of us, shamelessly lying to the American people is not also a crime.

Ken Levy

Ken Levy is a professor of criminal law at LSU Law School.

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