Congress, Criminal law, Society

The Media Rorschach Test And The Russian Meeting

Rorschach_blot_01Below 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.

93 thoughts on “The Media Rorschach Test And The Russian Meeting”

  1. @Tomaz, July 16, 2017 at 1:04 PM
    “Perhaps Turley is also a Russian spy like Trump and Trump Junior. I heard a story (from the brother of a guy that knows a man whose neighbor is a government official) that Turley has a cousin whose girlfriend’s aunt went to see a performance of the Russian Ballet and actially spoke to someone there who was born in Russia. There is your smoking gun.”

    @Paul Schulte, July 16, 2017 at 1:27 PM
    “Tomaz – there are several Russian ballet companies, which was it? And when was it? We know that in times past the various ballet companies carried a few spies with them, usually as interpreters.”

    Yes, Tomaz, it’s very important that you be specific both with regard to which ballet company it was and when the possibly treasonous conversation took place.

    Otherwise, you’re running the risk of mere rumormongering, or worse, telling tales out of school, which just might compromise what very well could be an ongoing counter-intelligence operation, which sometimes go on for months or even weeks.

  2. @Olly , July 13, 2017 at 10:51 AM

    “Nothing says I’m a corrupt oligarch more than getting Neil Gorsuch on the Supreme Court.”

    Speaking of oligarchy and its supporters in all three branches of the US Government, I’ll be most interested to see how strenuously President Trump opposes this egregiously oligarchical provision of the Senate InsuranceCare Bill:

    “I remember a lot of outrage about two things when I first ran for office: Obamacare and the bank bailouts. Unfortunately, the Senate healthcare bill combines the worst of those two — this time, we’re bailing out the big insurance companies.

    “Why? Partly because of the crony capitalism that pervades the culture in the swamps of Washington.
    But it’s more than that. In order to advance their crony capitalism, the Senate Obamacare bill takes us beyond the long-running debate about ‘is healthcare a right’ to a new debate: ‘Is health insurance a right?’

    “In other words, is there somehow a right to healthcare that includes a taxpayer obligation to maintain insurance industry profits, which hit a record $15 billion last year?

    “One would hope not.

    “But the one certainty of the Senate GOP health plan is that it guarantees a profit for Big Insurance. The same Big Insurance that takes in about $15 billion in profit annually. [Emphasis added]

    “Am I the only one in the Senate that finds this brand of crony capitalism unseemly? We aren’t talking about whether or not we take care of the poor or disabled who can’t afford their healthcare. We already do that in Medicaid and a host of other direct government programs.

    “The current Senate GOP healthcare bill creates a giant insurance bailout superfund of nearly $200 billion. [Emphasis added]

    “Big Insurance whines that they lose money in the individual market, while carefully leaving out the fact that they make enormous profits in group insurance markets that comprise about 90 percent of the private insurance marketplace.”

    http://www.washingtonexaminer.com/rand-paul-crony-capitalism-isnt-a-right-so-why-does-senate-healthcare-bill-give-insurance-companies-the-right-to-a-bailout/article/2628572

  3. @Olly, July 13, 2017 at 10:51 AM

    “Nothing says I’m a corrupt oligarch more than than getting Neil Gorsuch on the Supreme Court.
    “That’s some real good strategery. Bwahahahaha!”

    I take it that you’re trying to be facetious here, Olly, but nominating a corporatist shill like Gorsuch is in fact evidence of a species of oligarchical corruption. Look at Gorsuch’s long record of siding with corporations against the rights of individual citizens and tell me what he’s ever done to make oligarchs, including Trump, unhappy.

  4. @JT

    “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.”

    Why would “bizarre projections … become dangerous realities” after the Trumps are gone? Why aren’t they dangerous realities right now, while the Trumps are still here?

    Whether owing to mangled syntax or a Freudian slip, the clear implication expressed above is that the Trumps are fair game for bizarre prosecutorial projections, but other politicians are not.

    1. Kenneth Starr and Bill Clinton? The chants that were encouraged at Trump rallies- “Lock her up?”

      1. Linda – “lock her up” was also popular at the DNC convention in Philly by Indies. I preferred “Hell no, DNC, we won’t vote for Hil-ary”

      1. SierraRose – You obviously have a great and inquisitive mind. Sherlock of the 21st century.

        Richard

  5. The following email excerpt caught my attention: ” 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.”

    The email was written in June 2016. During that time frame, as I recall, there was no public discussion of Russian support for Trump. Could that email have been intercepted by US Intelligence and been the seed for the CIA report that declared the same? The Russian lawyer was a government operative and that email would have an excellent way for the Russians to cast doubt on the US election; the CIA and the media were tricked by the Russians.

    Richard

  6. JT, you can go on and on with your lie, spin, distract, deflect and repeat line for your republiborg collective day after day but the truth will come out. As for some of your readers, it very seems that they could care less about the safety of this country just as long as they get their far right ideas into play. Some of them are down right racist and just willfully ignorant of facts and history. The alternate universe that Trump’s supporters are in right now is dangerous and virtually certifiable. Lets the chips fall as they may with Trump, but our country can not and will not go on with such incompetent leaders of mass distortion.

    1. Fishwings, “our country cannot and will not go on with such inccompetent leaders of mas distortion” almost made me gag! Obama “if you like your doctor, you can keep your doctor, if you like your plan, you can keep you plan” said over and over for years. Obama “I didn’t know anything about this (IRS) until I read about it this morning” and “there isn’t a smidgen of evidence that IRS”. I heard so many lies for eight years, most provable as lies with video. Whilst Trumps were having meetings what were Clintons doing .. taking money from foreign governments for Clinton Foundation. That OK with you?

    2. Perhaps Turley is also a Russian spy like Trump and Trump Junior. I heard a story (from the brother of a guy that knows a man whose neighbor is a government official) that Turley has a cousin whose girlfriend’s aunt went to see a performance of the Russian Ballet and actially spoke to someone there who was born in Russia. There is your smoking gun.

      1. Tomaz – there are several Russian ballet companies, which was it? And when was it? We know that in times past the various ballet companies carried a few spies with them, usually as interpreters.

  7. “This is why Rorschack tests are so interesting.”

    You need a good editor, Jonathan.

    2. In one of his legal contortions, will Turley assert that the Trump team was enticed into a meeting, which they would not otherwise attend, because backdoor communication had not yet been set up at the Russian embassy?

  8. It’s jaw dropping to watch the GOP slowly and steadily give their country away to one of the most corrupt regimes on earth and to one of the most corrupt oligarchs on earth. Are tax cuts for the wealthy really worth it? Is privatizing the country for the benefit of a few really worth it? Is destroying the rule of law and one of the world’s great constitutions really worth it? Apparently it is.

    Are they being threatened or are they doing it of their own free will? Who knows.

    1. Nothing says I’m a corrupt oligarch more than than getting Neil Gorsuch on the Supreme Court.

      That’s some real good strategery. Bwahahahaha! 🤣

    2. It’s jaw dropping to watch the GOP slowly and steadily give their country away to one of the most corrupt regimes on earth and to one of the most corrupt oligarchs on earth.

      bookish,
      It’s a good thing to cite the rule of law and our great constitution. For those of us interested in that, please identify exactly what corruption from this regime has taken place that dropped your jaw?

      1. Russia = one of the most corrupt regimes on earth. If you didn’t know that, please pick up a good book or read one of the papers of record once in a while.

        1. And here I thought you were talking about the Trump Regime.Thank you for the clarity.

          Different question then: How has the GOP slowly and steadily given their country away to one of the most corrupt regimes on earth and to one of the most corrupt oligarchs on earth? Did they for instance give them our uranium? Please be specific.

        2. Hey Bookish – why don’t you read thomas frank’s book “Listen Liberals or whatever happened to the Party of the People”? Maybe then you’d understand the the corruption and internal attack on this country lies equally on the back of the Demoncrats.

          Globalists are only about profit and they exist on both sides of the party.

      2. If a hired assassin fails to fulfill a contract, Turley would claim no harm, no foul and dismiss it as bait and switch? The American people were the intended target in the analogy to the Trump Jr./Mannafort/Kushner meeting. It would be unwise for citizens to listen to Turley. The next meeting with an assassin might be more productive.

        1. The American people were the intended target in the analogy to the Trump Jr./Mannafort/Kushner meeting.

          That’s one strange assassin. I want to meet with you to provide you evidence of corruption in the DNC and specifically within Hillary Clinton’s camp. And then this assassin came unarmed. Hmmm, who again was the American target? All evidence points to President Trump and the American people. So let’s do a deep dive into this alleged assassin and get to the bottom of who hired her or coordinated this attack. Then we’ll know who really is selling out our country.

          Thank you for staying on this.

          MPP

  9. The marvelous thing about this article by JT is that he doesn’t include the right wing media. Deliberately refusing to apply his Rorschach thesis to Fox, Infowars, Breitbart, etc. confirms his clear bias. Why is that, JT?

  10. Awesome! How do you measure the right or wrong of government in a Utilitarian Democracy? The Rorschach Test of course. Yes, we have a constitution and we have laws, but why does the political class seem to be above the law? Because the rule of law is for the people; the political class is protected by the majority rule. The political minority won’t usually invoke the law because their majority turn will be coming.

    This is why I’m enjoying this dramedy. Progressives have gone full tilt at invoking the law and by doing so they are exposing the entire political class corruption to the law for everyone to question. This is the moment the American people can see behind the ink blot. Whether they do or not will depend on how quickly the progressive left realize their strategic mistake. My bet goes to a continuation of U.S. Civics being force-fed to the people by conservatives and the progressive left.

    More popcorn please. 🙂

  11. Why won’t corporate-MSM ask the following questions?

    1.) What “dirt” on Hillary Clinton did the Russians give to Trump Jr, Kushner, or anybody else on the Trump campaign? The corporate-MSM is woefully ignorant and/or unconcerned with the facts related to Hillary’s corruption & that of her DNC associates, Debbie Wasserman-Schultz; Donna Brazile; John Podesta; Loretta Lynch, and even Barack Obama.

    2.) If the “dirt” on Hillary Clinton is true– then why didn’t the corporate-MSM do its job and expose her corruption? MSM shilled for Hillary Clinton– covering-up her myriad crimes: Pay2Play; ElectionFraud; illegally deleting over 30,000 emails incl/ work emails; EmailGate; etc.

    3.) Why isn’t the corporate-MSM calling upon Mueller to expand his investigation to include the corrupt Clintons? Russia Gate is really Hillary Gate– Hillary rigged the DNC-Primary; NOT the Russians. Without Hillary, Bernie Sanders would be POTUS.

    The entire narrative surrounding Russia Gate is a false one: Hillary should be indicted for election fraud. Wikileaks exposed her — but we already knew how dishonest & illegal were her dealings with brutal regimes– but nobody in the MSM wants to address the facts, nor do they question Hillary’s myriad crimes.

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