Below is my most recent column in the Hill Newspaper on the latest round of predictions of possible criminal charges against the Trump family.
Washington began its week again with its collective Rorschach test: another Russian-related meeting that was immediately declared to be the “smoking gun” of criminal collusion or even “treason.” In the 1960s when Swiss psychologist Hermann Rorschach created his projective test, he found that people could reveal their motivations and perceptions in describing what they saw in amorphous inkblots.
In the continuing Russia Rorschach test, it turns out that every amorphous blob looks like a crime to media and many legal experts.
The latest is the disclosure of a meeting by Donald Trump Jr., son-in-law Jared Kushner, and then-Trump campaign aide Paul Manafort on June 9, 2016. Trump Jr. was told by a business acquaintance that a Russian lawyer, Natalia Veselnitskaya, had information implicating Hillary Clinton and the Democratic National Committee in illegal foreign campaign contributions from Russia.
While the participants have said that the meeting lasted only about 20 minutes and that the lawyer offered nothing in terms of such evidence — and instead pivoted to a discussion of rescinding a ban on Russian adoptions — the media went into a frenzy as experts spotted images of crimes from treason to defrauding the United States to campaign finance violations.
Yesterday, The New York Times added to this frenzy by reporting that “Donald Trump Jr. was informed in an email that the material was part of a Russian government effort to aid his father’s candidacy.” While I remain skeptical of the basis for a crime based on “collusion,” that would clearly be a significant development in supporting allegations of a knowing coordination with the Russians.
Today, Trump Jr. released his emails on Twitter. One states, “the crown prosecutor of Russia” had offered “to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” Rod Goldstone, a publicist, stated, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”
That would clearly constitute at least initial communications and possible coordination between the Russians and the Trump campaign. However, the article raises more questions than answers. If the Russians were making such a play to influence the election in favor of Trump, this is a curious way of going about it. The most obvious question is why the Russians would call such a meeting but not actually produce any evidence or even substantive allegations.
One obvious explanation is that Trump Jr., Kushner, and Manafort fell for a classic bait-and-switch. Veselnitskaya was representing people seeking to lift the adoption ban, and it was certainly amateur hour in Trump Tower. If this is the best the Russians can do as their big play, we have little to worry about.
They question is whether the Trump team is a bunch of click-bait chumps or criminals. In other words, does any of this constitute a clear crime or even a vague inkblot image of a crime?
No, at least not on these facts.
Richard Painter, an ethics lawyer under former President George W. Bush, has declared that the meeting “borders on treason.” Article III defines treason as “levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Trump Jr. went to a meeting on the belief that a lawyer had evidence of criminal collusion by Clinton with a foreign power. That is a rather curious basis for a charge of treason and would make traitors of countless campaign operatives.
On CNN, viewers were told that this is the long-sought “smoking gun” on collusion. Norm Eisen, a White House ethics czar under former President Obama, reportedly has invoked the Logan Act — a law from 1799 that makes it a crime for citizens to intervene in disputes or controversies between the United States and foreign governments. It has never been used to convict a single U.S. citizen and is widely viewed as facially unconstitutional. Yet, when Eisen looks at this inkblot he reportedly sees a Logan Act case.
For Vermont Law professor Jennifer Taub, the inkblot looks like a conspiracy to defraud the United States. She believes that prosecutors could charge the participants with seeking to defraud the United States under 18 U.S.C. 371 by going to a meeting to hear evidence that another party may have committed a crime … against the United States. No such evidence was offered, and no further actions are known to have occurred. There has never been a case under 18 U.S.C. 371 that even remotely resembles such a distortive claim.
One image that a lot of experts see in these stories is a possible violation of the federal law banning foreign contributions to federal campaigns — ironically the very claim that the meeting was called to discuss with regard to Hillary Clinton. The relevant law is 36 U.S.C. 510, which bars direct or indirect contributions or other things of value from a foreign national. MSNBC justice and security analyst Matthew Miller said Trump Jr. could now go to jail because “it doesn’t have to be money … it can be, potentially, accepting information. So he’s potentially confessing in his statement to committing a crime.”
Of course, the crux is “other thing of value.” Under this approach, a court would have to include information as a thing of value like money and then declare that Trump Jr. solicited the information by agreeing to go to the meeting. If that were the case, the wide array of meetings by politicians and their aides with foreign nationals would suddenly become possible criminal violations.
It is common for foreign governments to withhold or take actions to influence elections in other countries. Information is often shared through various channels during elections from lobbyists, non-government organizations, and government officials. This includes former Clinton aide Alexandra Chalupa, who allegedly worked with Ukrainian government officials and journalists to come up with dirt on Trump and Manafort.
Consider the implications of such an unprecedented extension of the criminal code. The sharing of information — even possible criminal conduct by a leading political figure — would be treated the same as accepting cash. It would constitute a major threat to free speech, the free press and the right of association. It would also expose a broad spectrum of political speech to possible criminal prosecution.
Executive branch officials could then investigate campaigns on any meetings where information or tips might have originated from a foreign source. Such an expansion would likely hit challengers the hardest, since sitting presidents not only control the Justice Department, but the government has a myriad of back channels in communicating with foreign officials.
While those contacts could be dismissed as “official communications,” a challenger could be viewed as consorting with foreigners. Under this interpretation, the act of a foreign non-government organization or foreign academic feeding an American damaging information on Trump’s foreign investments or business activities could be viewed as a federal crime.
This is why Rorschach tests are so interesting. The inkblot really does not look like your ex-wife or a badger wearing a hat on unicycle. It is what you are projecting. That same is true of crimes. We have to be careful that we do not allow our projections of crimes to distort our criminal code. This is not a game of how creative we can be in twisting statutory language to allow for a prosecution of the Trumps because those interpretations will continue long after the Trumps are gone. That is when bizarre projections can become dangerous realities.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.