Donald Trump Jr.’s email communication and subsequent meeting with a lawyer connected to the Russian government constitute probable cause that he and his father’s presidential campaign violated the Federal Election Campaign Act (52 U.S.C. §§ 30101, 30121). It is not yet clear whether these events are sufficient to obtain a criminal conviction. Special counsel Robert Mueller’s team is amassing additional evidence, which could eventually lead to criminal prosecutions.
In a June 3, 2016, email chain Trump Jr. released on Twitter, British publicist and former tabloid reporter Rob Goldstone told Trump Jr. the Russian government had “some official documents and information that would incriminate Hillary.” Goldstone added, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.” Seventeen minutes later, Trump Jr. replied, “if it’s what you say I love it.”
Six days later, on June 9, Trump Jr., then campaign manager Paul Manafort, and Jared Kushner, the president’s son-in-law and senior advisor, met with Natalia Veselnitskaya, a Russian lawyer with ties to the Kremlin, at Trump Tower. Trump Jr. arranged the meeting with the expectation of receiving negative information the Russian government supposedly had about Hillary Clinton.
These facts amount to probable cause that Trump Jr., the Trump campaign, and likely Manafort and Kushner committed federal election interference in violation of federal criminal law.
Federal Crime of Solicitation to Influence the Election
It is a federal crime for any person to “solicit, accept or receive” from a foreign national a monetary contribution or “other thing of value” which is given “for the purpose of influencing any election for Federal office.” The element of “other thing of value” can be satisfied by opposition research, for which candidates regularly pay research firms. It is not necessary that the defendant actually receive the thing of value. The crime is complete upon the solicitation.
Trump Jr.’s response to Goldstone ― “I love it” ― and subsequent meeting with the Russian lawyer constitutes probable cause to believe this crime was committed.
Manafort and Kushner could also be charged with the same crime. Although Trump Jr. insisted they were told “nothing of the substance” about the meeting before it took place, both Manafort and Kushner were copied on one of the emails in the thread with the subject line “Fw: Russia ― Clinton ― private and confidential.” If they attended the meeting with knowledge of its purpose, they could be criminally liable.
The watchdog organization Common Cause filed a complaint with the Federal Election Commission and the Department of Justice on July 10, 2017, asking both agencies as well as Mueller to investigate whether campaign finance laws were violated. Citing a New York Times article, the complaint states there is “reason to believe” that Trump Jr. and Donald J. Trump for President, Inc. violated the Federal Election Campaign Act by meeting with a “Kremlin-connected Russian lawyer during the 2016 campaign” in an effort to obtain “damaging information about Hillary Clinton.”
The complaint quotes from a Times report, which states: “It is unclear whether Russian lawyer, Natalia Veselnitskaya, actually produced the promised compromising information about Mrs. Clinton. But the people interviewed by The Times about the meeting said the expectation was that she would do so.”
Trump Jr. maintains that nothing of substance came from the June 9 meeting. But on June 14, 2016, DCLeaks released internal documents from the Clinton campaign for the first time. And one week later, WikiLeaks published numerous hacked Democratic National Committee (DNC) emails. Additional disclosures of hacked data continued to emerge until the presidential election.
Kushner Investigated for Helping Russia Release Hacked Emails
The Senate and House Intelligence committees and the Department of Justice are investigating whether the Trump campaign’s digital operation, led by Kushner, assisted Russia in targeting US voters and disseminating false information about Clinton.
McClatchy reports: “By Election Day, an automated Kremlin cyberattack of unprecedented scale and sophistication had delivered critical and phony news about the Democratic presidential nominee to the Twitter and Facebook accounts of millions of voters. Some investigators suspect the Russians targeted voters in swing states, even in key precincts.”
Justice Department investigators are examining whether Kushner and the Trump digital operation helped the Russians publicly release thousands of emails that were hacked from the accounts of leading Democrats at strategic points in the campaign, particularly via WikiLeaks. Investigators “doubt Russian operatives controlling the so-called robotic cyber commands ... could have independently ‘known where to specifically target … to which high-impact states and districts in those states,’” a source familiar with the Justice Department probe told McClatchy.
Lawsuit Filed Against Trump Campaign
Meanwhile, United to Protect Democracy, a watchdog organization run by former Obama administration attorneys, has filed a federal lawsuit for invasion of privacy against the Trump campaign and longtime Trump adviser Roger J. Stone.
The complaint, filed on behalf of two DNC donors and a former DNC staff member, accuses defendants of conspiring to release the hacked DNC emails and files that revealed their personal information. The DNC donors allege they suffered financial attacks and harassment after the WikiLeaks disclosures. The DNC employee’s leaked emails contained confidential information about his health and sexual orientation. Publication of this information resulted in bigotry against him and estrangement from his family. The complaint also alleges intentional infliction of emotional distress, and conspiracy to interfere with civil rights by intimidating lawful voters from giving support or advocacy to electors for president in violation of 42 USC § 1985(3).
This lawsuit could lead to the deposition of witnesses and discovery of emails and other documents. It would constitute an independent judicial investigation into ties between Russia and the Trump campaign. Besides Mueller’s Justice Department probe, there are currently investigations pending in the FBI, the House and Senate Intelligence committees, the Senate Judiciary Committee and the House Committee on Oversight and Government Reform.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School and past president of the National Lawyers Guild. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.