The Misplaced Search for Certainty of Collusion
Thursday’s WSJ article, its Friday supplement, the LawFare article and Josh Marshall’s editorial over at Talking Points Memo provide more granularity to the contours of possible collusion between the Trump campaign and possibly Trump himself. However, there is no direct link shown in these articles. I think some people, including myself at times, believe we will need to see incontrovertible evidence of the Trump campaign or Trump himself communicating with Russian agents in order to criminally charge them (note that indicting a sitting president is virgin ground and some legal experts believe it can’t be done). I don’t think that is true, particularly for people in the Trump campaign’s orbit, but it may be true if you believe that certainly is required to charge the President.
Personally, I would not be surprised if there are actual hard facts showing active communications between the Trump campaign (or surrogates) and Russian hackers backed by the Russian government or the Russian government itself. So many articles show a level of unsophistication, lack of appreciation of laws, let alone common sense, combined with brazen arrogance I would be surprised if there are not such communications. And this supposition does not even include what the intelligence community (FBI and CIA) already know and what people like Flynn and others have disclosed.
The WSJ articles basically show that a republican operative, who supposedly was connected to the Trump campaign, was communicating on the “Dark Web” with people who claimed to have Clinton’s deleted emails. Moreover, the operative claimed he was in communications with Flynn regarding same. A source, possibly the source, for WSJ article, Matt Tait, claimed that operative was aware that any such information was likely a part of the Russian attempt to influence the US election. In fact, Tait claims that the operative knew the information was likely from a Russian front but was unconcerned. Getting the emails in order to put them before the public to discredit Clinton was the sole objective. Probably the biggest piece of information from the WSJ article was the the intelligence community knew that Russia was trying to get info to Flynn through a conduit, which dovetails with the WSJ article regarding the operative’s creation of a shell company.
Criminal Law Theft and Aiding and Abetting
I am not extremely familiar with campaign finance laws or “aiding and abetting” criminal law principles, but I believe the operative’s actions, even if unsuccessful could be considered a crime. Maybe someone in the Kos family with knowledge of cybersecurity law could expound, but isn’t the hacking of emails a crime equivalent to stealing property? If so, the attempt to hack could be a crime along with the arrangement to acquire the stolen property or induce the criminal behavior. I think it is and there may be specific statutes in addition to established criminal law principles. If so, the operative was at minimum wanting to acquire stolen property or possibly induce another to steal property. The operative could be subject to “aiding and abetting” as part of the crime of the theft and possibly the conspiracy taking place. I would not be surprised to see Mueller charging many people along these lines.
Campaign Finance Violations Are Fertile Grounds For Mueller
What will net many people will be the violation of campaign finance laws and the oldie but goodie “aiding and abetting” laws. Bob Bauer, Obama’s White House counsel, has recently written extensively on what will no doubt be serious violations of federal campaign finance laws. As Bauer states, “federal law prohibits a foreign national from providing anything of value in connection with an election.” An American citizen would be in violation of federal law if he provided “substantial assistance” to the foreign spender in providing this “thing of value.” You don’t need to think too hard to see that the foreign spender, Russia, would be given “substantial assistance” if the operative laundered or attempted to launder hacked emails such as the Podesta emails. Moreover, Bauer asserts that a violation under this law would not require the type of “coordination” we seem to think necessary. As Bauer states, “rather than only look ‘externally’ for direct communications between campaign and foreign government, the investigation would focus its efforts more ‘internally,’ on the campaign’s intent to build this de facto political alliance with Russia.” If this is the correct legal standard, you do not need actual communications with Russia, you need the intent to align.
“Aiding ant Abetting” — A clearer path to Trump Criminality
Even more obvious, according to Bauer, is that the Trump campaign could be subject to criminal law principles of “aiding and abetting,” which, unlike federal campaign finance law, would not require the higher threshold of “substantial assistance”. Moreover, Bauer, successfully in my opinion, argues that the “impact” of the Russia’s cyber crimes is irrelevant to the violation of federal campaign finance laws and the principles of aiding and abetting. Rather, the encouragement and exploitation of Russia’s cyber crimes, particularly the hacking of the Podesta emails, constitutes accomplice liability. The crime is not the fallout, as AG Sessions testified, “it was the intervention that was illegal,” stated Bauer. I agree, even though the scale of the exploitation and encouragement of the crime by Trump and his campaign was so out in the open, it boggles the mind to see it as a crime.
Multiple Paths to Trump Criminality
While this article focuses on the growing evidence that may lead to actual, in your face, collusion between Russian and the Trump campaign, and possibly Trump himself, and the distraction, to a certain extent, of wanting certainly when such desire is misplaced, it is important to know that Trump and those around him may very well be prosecuted for other crimes as well.
Does anyone really doubt that, under the critical eye of Mueller and his team of the best prosecutors and investigators in the country, Trump could not be charged with tax violations and other crimes? A thorough review by a forensic accountant will certainly find tax violations. Actually, many people would be found to violate tax laws if audited, but Trump’s long history of shady deals, along with the growing information regarding connections to Russian banks and oligarchs will produce a treasure trove for any prosecutor. Additionally, does one really believe Kushner’s financial history, his contemporaneous relationship with Russian banks, his seeking clandestine meetings with the Russian government and others and his failure to disclose foreign entanglement will not lead a federal prosecutor to criminal acts? I certainly expect Mueller will find criminality.
Moreover, the above does not include the obvious and most direct behavior of Trump, which is obstruction of justice. I really don’t know how, legally as opposed to politically, a prosecutor would not charge a similarly situated person with obstruction of justice. I don’t think this is a hard case although Mueller may not prioritize it as such since, conceivably, it could risk Rosenstein having to recuse himself which then might result in the investigation’s termination. I don’t believe Rosenstein is necessary to make these charges as there is ample evidence in addition to Rosenstein’s actions regarding the memo he drafted.
Of course, we now have the President possibly tied to something akin to extortion. The Joe Scarborough allegations, if true, could certainly turn into criminal activity, if not high crimes. If the President sought to induce Scarborough and Mika to apologize and/or become less critical of Trump in return for killing the Enquirer story, that might very well be a crime. It would certainly be an abuse of power.
Possible Mootness of Charging the President with a Crime
In sum, there are a lot of moving parts. I believe Mueller already has ample evidence of criminality by not only the Trump campaign, but Trump himself. Maybe the real question is what Mueller decides to do with the obvious criminality of the President. The others will go to jail or be pardoned, but will Mueller decide to declare that the President broke the law? I think Mueller should, but I don’t know if he will. Maybe it will be irrelevant once a great many people who surround him are charged with criminal acts. We know one thing about how Trump will react: he will self-sabotage.