Below is my column in the Hill newspaper on how critics of Donald Trump have been calling for radical extensions or interpretations of criminal provisions against core figures. The implications for such interpretations of crimes like treason need to be considered by critics.
“So now you’d give the devil benefit of the law!” Those were the words of William Roper in one of the most riveting scenes from “A Man For All Seasons.”
He was chastising his father-in-law, Sir Thomas More, for elevating the law above morality. Roper, who was himself a lawyer and member of Parliament, was the face of resolve — and relativism — in the law. When More asked if Roper would “cut a great road through the law to get after the devil,” Roper proudly declared that he would “cut down every law in England to do that.”
After the 50th anniversary of the classic movie, we seem to be living in the “Age of Roper” — and rage. There is a constant drumbeat in the news as experts declare prima facie cases for indictment and impeachment against President Trump, Donald Trump Jr., and Jared Kushner. Trump has been denounced as threatening free speech, the free press, and even the democratic process.
However, the push for criminal charges could well create the very dangers that critics associate with Trump. Few have considered the implications of broadening the scope of the criminal code and handing the government wider discretion in criminalizing speech and associations. Once you declare someone to be the devil, there is no cost too great to combat him or his spawn.
Trump has certainly become a diabolic figure for many (though his popularity among Republicans remains above 80 percent). This hatred has blinded many to the implications of pulling up the roots of our criminal laws “to get after the Donald.” In particular, they should consider the cost to free speech and the political process if they hand the government the power to criminalize some of this conduct.
In the chorus of criminal charges following the disclosure of the Russia meeting, Sen. Tim Kaine (D-Va.) was not to be outdone. Where others were arguing election fraud, Kaine declared that the case has moved to a potential treason charge. Likewise, Richard Painter, chief ethics lawyer for President George W. Bush, has said that, while rarely charged without a declaration of war, “the dictionary definition” of treason and the “common understanding” is “a betrayal of one’s country, and in particular, the helping of a foreign adversary against one’s own country.”
Former Watergate prosecutor Nick Ackerman declared the emails to be “almost a smoking cannon” and added that “there’s almost no question this is treason.” Even if there is a reluctance to bring a direct treason charge, Painter insists that “we just use other statutes because most of what is treason would have violated another statute anyway.”
Article III of the Constitution defines this crime as consisting “only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” With neither a declaration of war nor an act of levying of war, such a charge is both absurd and dangerous. Many countries like China routinely charge communications with foreign organizations to be treason.
Indeed, Turkey’s Recep Tayyip President Erdogan this week pledged to “chop off the heads” of some of the thousands of Turks arrested as supporting the failed coup last year, including political opponents. That is precisely why the Framers, and later courts, have narrowly defined this crime and why relatively few treason cases have been brought and even fewer have succeeded in this country.
Some lawmakers, like House Minority Leader Nancy Pelosi (D-Calif.), have suggested that if the Russians were hacking or spying on the Democrats, Trump Jr. and others participated in the crime of espionage. Like treason, the effort to construe this meeting as espionage would rip the crime from its statutory roots. There is no evidence that Trump Jr. gave any sensitive information to Russian officials or sought to hurt U.S. national security. If this were espionage, a host of campaigns and citizens could be investigated as traitors or spies for using information from a foreign source.
Cornell Law School Vice Dean Jens David Ohlin has declared the Trump Jr. emails to be “a shocking admission of a criminal conspiracy.” However, the crime itself requires a showing that Trump Jr. sought to “conspire either to commit any offense against the United States, or to defraud the United States.”
MSNBC legal analyst Paul Butler identified the crime as “conspiring with the U.S.’ sworn enemy to take over and subvert our democracy,” and declared it is now clear that “what Donald Trump Jr. is alleged to have done is a federal crime.” The suggestion that acquiring opposition research is an effort to “defraud” an election would, again, criminalize a host of political speech and associations.
It would allow the government to call campaigns into grand juries to answer for discussions of how they obtained information or who they consulted. We live in a global marketplace of ideas and exchanges. The line between information given as part of political speech and information given to defraud could vanish… with a great deal of our political discourse.
I have previously discussed how the firing of former FBI Director James Comey has prompted many to declare a prima facie case of obstruction. Like many others, Akerman declared the matter resolved, saying, “Our president is guilty of obstruction of justice for endeavoring to obstruct an FBI investigation.”
However, an obstruction charge is based on obstructing a grand jury or other pending proceeding. FBI investigations are not generally considered a pending proceeding and case law has rejected such claims. Moreover, it would allow the government to broaden the element of trying to “corruptly” influence to an extent never reached in any prior case.
Under such an ambiguous standard, prosecutors could charge people willy nilly for a host of interactions with witnesses or documents in the earliest stages of an investigation. Prosecutors could force pleas or testimony under constant threats of obstruction charges. That is why courts have narrowed the language of obstruction.
The same chilling results would occur if, as a host of experts have declared, the receiving information from any foreigner would violate the Federal Election Campaign Act. The law makes it illegal to “solicit, accept, or receive a contribution or donation… of money or other thing of value” from a foreign national in connection with a federal election. Experts have declared the law as all but satisfied as a basis to charge Trump’s son.
Nick Akerman, a former Watergate assistant special prosecutor, declared, “It’s illegal campaign contributions. It would be conspiring to commit campaign violations.” Likewise, Ryan Goodman, a former Defense Department special counsel, has declared, “There is now a clear case that Donald Trump Jr. has met all the elements of the law.”
Of course, no court has ever reached such a conclusion and hopefully would never do so. If the receipt of opposition research from a foreigner is now equivalent to receiving illegal campaign funds, the law would extend to foreign academics, public interest groups, nongovernment organizations, and journalists supplying information to a campaign.
An environmental group might have given Hillary Clinton’s campaign a dossier on Trump’s business practices. All of those interactions could be investigated and prosecuted — sweeping a wide array of political speech into the criminal code. If successful, these experts and advocates would hand the next administration the ability to harass and pursue political opponents and groups.
During the Obama administration, Democrats tossed aside the principles of separation of powers and supported President Obama’s use of unilateral authority to circumvent Congress. The Democrats acted as if Obama would be our last president in abandoning core constitutional principles. Trump is now enjoying the very unilateral powers that the Democrats so unwisely embraced.
Trump will not be our last president — just as Obama was not. These laws will be left to the next president to use in the same broad fashion against others. Democrats have simply replaced blind loyalty under Obama with blind rage under Trump.
In the movie scene with Roper, More cautions those who too willingly discard or twist laws to achieve desired ends, saying, “Oh? And when the last law was down, and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake.”
More shows the recklessness of Roper’s resolve — the dangerous tendency to make the law bend to your will in the name of a higher cause like Roper’s desire “to get after the devil.”
As satisfying as it may be to “get after the Donald” or his progeny, the engorged criminal code that would be left would then be handed to the next president. That president would then have a less obstructed range for the investigation of opponents and critics. If that day should come, we must ask ourselves how we will “stand upright in the wind that would blow.” As More noted, it is a question worth asking not for Trump’s sake, but for our own.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.