A Closer Look at What Constitutes ‘Collusion’

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To President Donald Trump’s critics, it’s “smoking gun” evidence that proves his 2016 campaign was engaged in collusion with Russia.

To his allies, it’s merely a “nothing-burger” — an inconsequential meeting between the president’s eldest son and a Russian lawyer that led to no meaningful information for the campaign.

Donald Trump Jr. had long dismissed allegations that his father’s campaign colluded with Moscow to win the election.

But in a bombshell revelation Tuesday, Trump Jr. released emails showing how he eagerly agreed to meet with the Russian lawyer, Natalia Veselnitskaya, after she promised she had damaging information about Hillary Clinton, to be turned over as part of the Russian government’s support for Trump’s candidacy.

“I love it,” the son responded after an interlocutor setting up the meeting wrote that Veselnitskaya had “official documents and information” that would “incriminate” Hillary Clinton and be “very useful to your father” as “part of Russia and its government’s support for Mr. Trump.”

But did Donald Junior’s eagerness to meet with the lawyer to collect dirt on his father’s political rival amount to collusion? And what law, if any, did he break by agreeing to a meeting that was also attended by Trump’s campaign manager at the time, Paul Manafort, and Trump son-in-law Jared Kushner?

Donald Trump Jr. has denied any wrongdoing, telling Fox News on Tuesday, “For me, this was opposition research.”

Special Counsel Robert Mueller is reportedly looking into the meeting as part of a broader investigation into whether Trump associates colluded with Russia and whether any crimes were committed along the way.

The dictionary, by the way, says to collude means to come to a secret understanding for a harmful purpose. But there are many deeper questions to explore.

To examine the legal issues arising from the June 9, 2016, meeting between Donald Trump Jr. and Veselnitskaya, we turned to two former federal prosecutors: Andy McCarthy, a fellow at the conservative National Review Institute, and Peter Zeidenberg, a partner at the Arent Fox law firm in Washington.

This is a transcript of our conversation, edited for clarity and length.

VOA: Let’s start with a basic definition. What constitutes collusion and is collusion a crime?

McCarthy: Collusion is really not a concept in American law. We have a concept called “conspiracy,” which is an agreement to commit a violation of federal law. Literally, collusion just means concerted activity between two parties and it can be or not be a violation of law. It can be innocent behavior. It has a fairly dark connotation, so it’s suggestive of concerted activity for bad purposes, but that’s not necessarily the case.

Zeidenberg: There is no crime of collusion. I don’t know why it’s been discussed so much. The crime, if there is one, is one of conspiracy. I think collusion, when people are discussing it, means some kind of cooperation — in this case, with the Russians during the campaign. Collusion, in my mind, would mean cooperation or working together with the Russians in a way that while wholly inappropriate and unethical may not be illegal. If there is actual conspiracy, that suggests of course there has to be a criminal act involved.

VOA: Was it a crime for Donald Trump Jr. to meet with a Russian lawyer with Kremlin ties to collect damaging information on Hillary Clinton? What kind of legal trouble is he in?

McCarthy: I believe it is not a crime. I think it’s unsavory behavior and it’s got much more important political ramifications than legal ones, but as far as whether what we know up to this point amounts to a crime, I don’t believe it does.

Zeidenberg: In and of itself, it doesn’t constitute a crime, in my view. What it does show is a state of mind for him and for [former Trump campaign manager Paul] Manafort and for [Trump son-in-law and senior adviser Jared] Kushner, who all attended the meeting, all knowing that the purpose of the meeting was to get damaging information from the Russian government that‘s going to help them, their campaign against Hillary Clinton’s. It’s certainly an important piece of evidence if you’re building a criminal case involving conspiracy, because it shows their state of mind, their interest and willingness to do this.

VOA: Under U.S. law, foreign nationals can’t contribute any “thing of value” to American election campaigns. Was the information promised by the Russian attorney a “thing of value”?

McCarthy: It may have been a thing of value, in terms of whether it would be a case that would be pursued under criminal law, I don’t believe it would. First of all, this sort of thing goes on all the time. And second of all, it has much ado about nothing in the criminal law sense. And most campaign funds violations, even really serious ones, are handled by an administrative fine. So, for example, we had a campaign finance violation involving the Obama campaign 2008. It was a $2 million violation and they were allowed to settle it with a $375,000 fine. And to me, to talk about a very serious issue of potential coordination with a hostile foreign regime, in terms of whether it violated the campaign finance law trivializes the misconduct we’re talking about.

Zeidenberg: It arguably was. However, in my mind, that’s not a very attractive case for a prosecutor to make. To make a case that will hold up, persuade a jury, and pass the smell test, I think you have to have evidence of more than just accepting promises of opposition research from Russians. I think you’d have to show that there was some kind of quid pro quo.

VOA: In his defense, Donald Junior told Fox News, “For me, this was opposition research.” Can he use that argument as a legal defense?

McCarthy: It would depend on what he was charged with, and as I said, I don’t see any charges here. So, if you’re saying that someone was silly enough to try to indict that as a campaign law violation, could he use this as a defense. I think he’d have a very good selective prosecution and legal claim because this is the sort of thing that goes on all the time. And to single him out for prosecution, collecting opposition research from foreign sources when no one ever gets prosecuted for that, to me would be not only silly, I think it would raise some pretty profound constitutional questions about not only selective prosecution but also First Amendment issues dealing with political speech. I don’t think he can be prosecuted for that.

Zeidenberg: He can try but I think he’s setting himself up for putting all the pieces in place for the prosecution. He also said that they discussed adoptions. The reason they were discussing adoptions is the Russians were willing to resume Russian adoptions if the United States gave them sanctions relief. On the other hand, they were talking about dirt on Hillary Clinton. If you exchange those two things, you’ve got quid pro quo. And I think you have got a criminal conspiracy.

VOA: Should Donald Junior have alerted the authorities about the Russian lawyer’s promise of help instead of going ahead with the meeting?

McCarthy: I’d think so, yes. I’ve certainly never prosecuted anyone for it, but again, campaign finance laws are very constitutionally dubious. And to push them under circumstances where the First Amendment actually pushes against them, I think, would be a very unwise thing to do. And again, to my mind, I must say from a political standpoint, that if I was the Trump camp, and my opposition, instead of dealing with the seriousness of the issue – and I’ve regarded it as quite serious – was talking about it in terms of campaign finance law, I’d be celebrating because it’s trivial and what happened is not trivial.

Zeidenberg: Clearly, yes. It seems self evident that if a foreign power, an adversary of the United States, is trying to interfere with our election, you don’t just take them up on it and see what good stuff they may have for you. You report it to law enforcement.

VOA: Donald Trump Junior had repeatedly denied any contacts between his father’s campaign and Russia. Now, we don’t know if he’s been questioned by the authorities, but can his disavowal be held against him in light of the email revelations?

McCarthy: Well, they can be used against him politically. I should tell you that I’m not particularly interested in Donald Trump Jr. and I don’t think that his legal problems, if he has them, are of much moment. In our constitutional system, when you’re dealing with potential executive misconduct, the remedy that the framers talk about is impeachment based on high crimes and misdemeanors. It’s not courtroom prosecution for criminal offenses. And I think trying to take into account the magnitude of executive misconduct, where it’s weighty enough to be talking about impeachment, and try to pigeonhole it into technical violations of the criminal law, again, really, discounts the kind of important behavior that we’re talking about.

Zeidenberg: Not legally unless he’s been interviewed, and my guess is he’s not been interviewed by law enforcement. So those previous disavowals are not actionable legally. However, Jared Kushner’s are. And he made those disavowals when he did his security clearance form, which is submitted under the pain of perjury.

Q: Senator Tim Kaine, Clinton’s former running mate, has said Donald Junior may have potentially committed treason when he agreed to meet with the Russian lawyer. What constitutes treason and is it possible in this case?

McCarthy: No, this isn’t treason … so I think it’s irresponsible for Senator Kaine to be talking in that kind of rhetoric, especially having run with Mrs. Clinton, who took lots and lots of foreign money and actually green-lighted when she was secretary of state on arrangements that allowed the Russian government to acquire, or [entities] connected to the Russian government to acquire, about 20 percent of American uranium holdings. I just think to bring treason around to [Trump Jr.] really is an unwise and inappropriate thing to do, especially when what we talk about is very serious behavior that ought to be looked at. Treason is levying war against the United States, to give aid and comfort to the enemies of the United States. And there is a lot of dispute about whether Russia should be viewed as an enemy of the United States. I’m probably in the camp of people who are more aggressive … about Russia than others. I do regard them largely as an enemy state. A lot of other people say that they’re a geopolitical competitor, the very aggressive kind. I guess that’s a fair description as well. I don’t see taking a meeting with Russians and taking information from Russians as treason.

Zeidenberg: I’m not an expert on treason by any stretch, but I understand it involves an adversary with whom the United States is in a state of war. … I don’t know that Russia would necessarily qualify. I don’t think reprehensible is a strong enough word to describe the conduct at issue. I think colluding with a foreign power against your country to try and assist an election is astonishingly bad behavior and reprehensible conduct. I don’t know if it would qualify as treason.



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