Archive for the 'Russia-Trump Campaign Investigation' Category
If the Trump campaign solicited support from Russians in the race against Hillary Clinton, did it, or any of its staff, have the mental state required for prosecution under federal criminal law? The discussion so far has largely centered on Donald Trump Jr.’s actions in scheduling the June 9, 2016 meeting at Trump Tower, and for a number of commentators, the issue seems to be his own personal liability. Professor Andy Grewal has made the point that the bar for establishing criminal intent is high. He is not alone in this judgment. Professor Saikrishna Prakash agrees.
It is without doubt correct that people should not go to jail for breaking a law unless the rule they violate is clear and they had the requisite intent to violate it. This is, of course, especially imperative when they are engaged in core First Amendment-protected activities like participating in a political campaign.
In the case of the June 2016 Trump Tower meeting, however, this argument can be--and has been-- both overstated and misdirected. Now that Jared Kushner has provided his account of the meeting, there is additional material useful in analyzing the campaign’s culpability.
Moreover, in sorting out these issues, it is essential to keep in mind what conduct the campaign finance law does, or does not reach. Commentators like Professor Prakash and Eugene Volokh fear that even if the Trump campaign, its candidate and it senior staff sought and received Russian Government help, an overly expansive construction of the campaign finance laws to reach this conduct could present major constitutional risks. For example, journalists might be liable for seeking or accepting from foreign nationals information intended to damage a political candidacy. These concerns are also off the mark, because the there is nothing exceptional or overbroad in a reading of the law that covers the Trump campaign conduct.
A reader has asked whether I am abandoning this site for others in writing about the campaign finance issues in the Russia-Trump campaign matter. Not so. But I did agree to write on this subject for Just Security, and I have touched on other related issues for Lawfare
.Here are the various Just Security postings grouped together. (One earlier posting relates to another subject altogether, but all the recent ones address the Trump campaign-Russia issues.)
Also, there are always interesting questions to be asked about the ethics of political speech and action, not just the governing law. I wrote for Lawfare yesterday on President Trump’s defense of the June 6 meeting at Trump Tower. He takes it to be nothing more than politics-as-usual. I question that.
This is a follow-up to a first posting on this issue, now up on Just Security.
The text is also reproduced below:
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As a potential crime under the campaign finance laws, the Trump campaign collusion with the Russians is well documented. As I contended in a recent essay, there is ample evidence in plain sight. The President applauded a foreign government for its interference in the election and suggested that he would be happy to see more of the same. Asked to disavow it, he declined to do so. Both the candidate and his campaign made extensive use of the material the Russians supplied via WikiLeaks on the campaign trail and in the presidential debates. The Russians had a willing partner in their design to influence the election and a clear signal that their intervention had value. There is more than enough in the public record to warrant inquiry into the Trump campaign’s “substantial assistance” to a foreign government in violation of the campaign finance laws.
Some analysts believe that this is evidence is insufficient. They insist that more is needed in the form of direct communication between the campaign and the foreign government. But they are mistakenly discounting the significance of the evidence in plain sight, and looking in the wrong direction for more proof, if in fact more is needed.
Legal Process and the Comey Firing
The text is below: --------
In the critical response to the President’s firing of Jim Comey, much of the commentary has centered on the action itself, its motives and its potential effects. Noah Feldman writes in Bloomberg that the President’s termination of the FBI Director was within his lawful authority, but that it breached a norm that secures the necessary measure of independence for law enforcement. He sees the crisis not so much as a constitutional crisis, as one of law, and no less serious for that. Here, on Lawfare, Benjamin Wittes and Susan Hennessey have similarly called attention to the threat to the integrity of the Russia inquiry. The emphasis is on what the President did and its implications for the rule of law.
The question of how the White House did this—the process followed and the explanation provided—tends to be of secondary concern in the analysis so far. The “how” issues are seen mainly as examples of botched political judgment or public communications strategy, or as clues to the real motives behind the action. This is a mistake. How Mr. Trump went about this firing has implications as profound as the action itself for the rule of law in his Administration.
The termination judged on its merits raises important questions, which the administration must answer, but this line of inquiry is complicated. After all, the President, as Feldman notes, has the authority to fire Mr. Comey, and some have argued that the Director may have exhausted his controversial tenure at the Bureau. Mr. Trump was quick in a late-night tweet to remind his audience that the Democratic Senate leadership had declared that Comey no longer had their confidence. Democrats and some in the press have understandably scorned the Administration’s opportunistic embrace of criticisms of Mr. Comey’s handling of the Clinton email investigation: They note that Mr. Trump had taken (and tweeted) flatly contrary positions on the campaign trail. But it seems odd to demand that the administration stay close to the positions the President staked out, in tweets and otherwise, as a candidate. Many hope, fervently, for better.
So a fair question is whether the issue of actual or perceived self-interest have made it impossible for Mr. Trump to have removed Mr. Comey at any time—or just until the conclusion of the Russia investigation? Assume that Mr. Trump had not fired Comey yesterday and that the Department of Justice’s Inspector General, now examining the Director’s handling of the Clinton email matter, issued a report finding that Mr. Comey had violated Department policies or norms. Could the President have dismissed him then?
The reason for putting the question this way is to shift the focus of inquiry from the “what Trump did” to the “how Trump did it” of the firing. This shift does not diminish the significance of the action for the rule of law. It brings out the importance of the “how” question for just this concern.