[NOTE: I’ve revised or retracted some of the arguments below in a follow-up post: http://shugerblog.com/2017/07/12/re-thinking-the-thing-of-value-campaign-finance-charge-against-don-jr]
Tonight, the New York Times story is a smoking gun of Donald Trump, Jr.’s criminal conspiracy to collude with a foreign national, but it also entangles Manafort and Kushner rather directly. The New York Times reports, “Before arranging a meeting with a Kremlin-connected Russian lawyer he believed would offer him compromising information about Hillary Clinton, Donald Trump Jr. was informed in an email that the material was part of a Russian government effort to aid his father’s candidacy, according to three people with knowledge of the email.” Yesterday’s Times story reports that Don Jr. pulled Manafort and Kushner into the same meeting, and it wasn’t because they care deeply about adoption policy.
I’m pulling together the work of Bob Bauer and Jennifer Taub here. The relevant statute is 52 USC 30121:
“It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election…
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) … from a foreign national.”
Keep in mind “a thing of value” includes information, as campaign finance expert (and NYU Law Professor of Practice) Bob Bauer
has explained
several times.
Also keep in mind that the Russian lawyer met as a representative of the Russian government, but it doesn’t matter: she is a foreign national regardless of her relationship with the Russian government. And it doesn’t matter if the Russian lawyer actually provided any information. The New York Times story, if true, shows Donald Jr. believed that the Russian government was involved in providing information, so he had intent to violate the statute. Thus, he engaged in a criminal conspiracy to violate these post-Watergate campaign finance laws, and between his own confessions to the basic facts on Sunday plus this reported email, Don Jr. doesn’t have anywhere to hide.
Josh Marshall at Talking Points Memo made an
important observation today: that five White House insiders or Trump advisers are the sources. Marshall wrote, “The only reason a President’s allies ever do something like that is either to get ahead of something much more damaging or get a first crack at shaping the public understanding of something much more damaging. There’s really no other explanation. We don’t know yet what drove them to volunteer such highly damaging information. Five of them did it. It wasn’t a matter of one person going rogue.”
I’m also struck by suggestions that the White House insiders are conspiring now to pin the blame on Donald Jr. to save the rest of the administration. Kushner and Manafort are now wrapped up into this conspiracy, and they failed to disclose this meeting, among all the others. Have they been questioned by the FBI or Mueller’s team, and did they lie under oath? Now Trump will probably be questioned under oath about the meeting, too. But perhaps the most important result of these bombshells is political optics. President Trump already has a slam dunk case of obstruction of justice, but the problem had been that it was unclear what he was obstructing. Now the public has a clear story of a crime that Trump was obstructing. And who knows what other shoes will drop next, and which of these co-conspirators will flip next. What does Flynn know? Mueller will be asking, and he has more and more to work with everyday.
[Update: Kushner and Manafort now appear to have violated 18 U.S.C. 4, Misprision of a Felony:
“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”
So now Kushner and Manafort are facing another grounds for indictment, and whoever else knew of this meeting will be facing charges, too.]
Update, 7/11, 8:45am: Randall Eliason has more on these criminal charges at Sidebar:
Author: Jed Shugerman
Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases.
He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.
View all posts by Jed Shugerman
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Because “they” keep commenting, in what ways is the Clinton-Ukraine situation different from the Trump Jr/ Kushner/ Manafort-Russia situation?
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