Update on Don Jr. emails and criminal case: What is a “thing of value”? What is “collusion”?

When I posted on the breaking news last night, I was working with the claim that receiving opposition research information from foreign sources could be a violation of campaign finance laws. The question is if this information is a “thing of value” and if it could be covered by the criminal statute 52 USC 30121. The problem is that, even if opposition research (“dirt”) is surely something of value, it is also speech. I can find no precedent interpreting information as a “thing of value” under 52 USC 30121, and there is probably good reason for this caution.

There is a lot of damning material in Don Jr.’s emails released today, but nothing makes the meeting more than sharing information.

Here are the new details: Family friend Rob Goldstone identified the lawyer as a “Russian government attorney” who had “documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.”  The material is “ultra sensitive” because it was “part of Russia and its government’s support for Mr. Trump.” Trump Jr., responded, “If it’s what you say I love it especially later in the summer.” It appears that Trump Jr. forwarded this thread to Kushner and Manafort, so they seem to know this context.

On the one hand, it doesn’t matter if the lawyer wasn’t in fact a Russian government attorney and that she didn’t deliver any real information. The issue is intent.

On the other hand, there is no additional evidence that Trump Jr. had any reason to believe that this information was obtained illegally (by hacking or otherwise). My concern is that it may be too big a leap to criminalize the sharing of information from a foreign national or a foreign official.

There is no free-standing crime of “collusion.” A criminal case may turn on a link between the Trump campaign and the illegal hacking, in terms of awareness, coordination, and encouragement. The bigger questions may now be about Kushner and Manafort, their lack of disclosures, and perhaps any lies or obstruction of justice.

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. Father of three, married to a Canadian, but I'm not laughing at any of the "So you really can move to Canada!" jokes in 2016. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I'm working on the Emoluments litigation against Trump, as well as a history of prosecutors and American politics, and another project on the origins of "independent agencies" in America.

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