The growing number of allegations about President Trump’s links to Russia sounds really incriminating. But would any of them actually be illegal?
As the FBI probes possible coordination between the Trump campaign and Moscow in the run-up to the 2016 election, an array of Trump associates find themselves in the crosshairs of federal and congressional investigators.
There’s former National Security Adviser Michael Flynn, pushed out of the White House for lying about his communications with the Russian ambassador to the US. There’s Trump adviser Roger Stone, who has admitted to exchanging messages with a hacker thought to be a front for Russian intelligence. There's former Trump campaign manager Paul Manafort, who is accused of failing to publicly disclose taking millions of dollars from a pro-Russian Ukrainian political party and a Russian oligarch. There's Carter Page, Trump’s foreign policy adviser, who advised Russia’s state-controlled gas company Gazprom and was once unsuccessfully courted by Russian spies to become one himself. And that’s not close to an exhaustive list.
But there’s a difference between unseemly conduct and criminal conduct, and I spoke to legal experts to separate one from the other. What I learned is there are three main sets of laws that — at least given what we know now from news reports — could end up being the basis for criminal charges against Trump associates: violation of the Computer Fraud and Abuse Act, failing to comply with the Foreign Agents Registration Act (FARA), and making false statements to federal investigators. All of them are felonies and carry the potential penalty of prison time.
At the moment, we don’t know exactly what information the FBI has or if anything especially damning will come to light, and there’s no indication that Trump himself would be implicated in any charges related to cooperating with Russia during or immediately after the election. But if his closest aides end up being indicted for effectively working with a foreign power that the US doesn’t have friendly relations with in order to undermine the US electoral process, that would likely create a political crisis of Watergate proportions.
Why treason isn’t on the table but other crimes are
The legal experts I spoke to almost all said, without prompting, that the issues at play here didn't come anywhere close to treason, a word tossed around by some advocates on the American left.
That’s because being guilty of treason would mean that someone from Trump’s team would have to have been aiding a country or group that was legally at war with the US. Russia isn't.
“Formally, we're at peace with Russia, so even the most outrageous assistance to Russia or benefit to Russia wouldn't count as treason,” Carlton Larson, a law professor at the University of California Davis, told me.
When Julius and Ethel Rosenberg were prosecuted in the 1950s for sharing atomic secrets with the Soviet Union, they were tried for espionage, not treason, for this exact reason. The Cold War was already underway, but the US and Russia were technically at peace. If the Rosenbergs weren’t guilty of treason back then, it’s almost impossible to conceive of how Trump affiliates could be guilty of it today.
But those experts say there are many other acts the FBI is likely looking into that could potentially amount to criminal activity. A substantial caveat: We don’t know what kind of information and evidence the FBI has, so right now we’re operating in the realm of educated conjecture based largely on news reports. That said, there are three big sets of possible violations that are most likely being investigated:
- Whether any Trump campaign members encouraged or aided the hackers who broke into the email servers of the Democratic National Committee and Hillary Clinton chair John Podesta, in violation of the Computer Fraud and Abuse Act.
- Whether any Trump campaign or administration officials intentionally avoided registering with the Department of Justice that they were working for a foreign government or other foreign entity under FARA. So far, we know Flynn didn’t register for his paid activities on behalf of the Turkish government on the campaign trail until March. We also recently learned that in past years Manafort did not disclose his work on behalf of a Russian oligarch with the intention of advancing Putin’s agenda, and failed to do so with activities for a pro-Russian Ukrainian political party.
- Whether Trump associates have made false statements to federal investigators. This could be particularly dangerous for Flynn, who reportedly misled the FBI about his phone calls with the Russian ambassador to the US in December.
They’re all felonies, although some are enforced more rigorously than others.
What laws the Trump team really needs to worry about
Based on what we know, the FBI’s top priority is to determine if any of Trump’s associates cooperated with the hackers who broke into the email servers of the DNC and Podesta.
Whoever hacked the servers almost certainly violated the Computer Fraud and Abuse Act, which bars unauthorized intrusion into a computer or computer network and makes it a federal crime. The intelligence community believes those cyberattacks were carried out by Russian hackers taking orders from Russian President Vladimir Putin.
The question is whether anyone from the Trump campaign knew what Russia was doing and encouraged it or helped Moscow choose specific targets. Someone on the campaign could also be charged for promising some kind of quid pro quo in exchange for the hack. That could be punishable with up to 10 years in prison.
Another likely major focal point for the FBI probe is the Trump team’s compliance with FARA, a statute that dates back to the World War II era. In the US, private citizens have freedom to work on behalf of foreign governments or foreign entities affiliated with the government — but they have to register with the US to disclose that they’re doing so. A failure to register is a felony offense. There’s also a separate statute that holds that public officials in the US cannot act as foreign agents at all.
So far, there have been a few major revelations that suggest Trump associates may have violated FARA laws. In March, we learned that Flynn failed to disclose the fact that he was being paid to lobby on behalf of the Turkish government while serving as an adviser to Trump on the campaign trail, and only registered retroactively in March.
We also know that Trump campaign manager Paul Manafort had failed to disclose lobbying on behalf of pro-Russian Ukrainian political leaders in previous years, as well as a Russian oligarch in Putin’s inner circle. Federal investigators are almost certainly looking into whether Flynn, Manafort, and other Trump advisers deliberately defied the mandate of FARA while working for those and other foreign entities.
FARA is typically lightly enforced — the Justice Department tends to bug violators to comply with it rather than taking them to court. But it is a felony if registration is violated intentionally, and it can be punished with prison time. “It’s not something that the government generally tries to criminally enforce, but they could,” Ryan Goodman, an NYU law professor and former senior Pentagon lawyer, told me.
The biggest potential danger facing the Trump team has to do with whether they’ve told the truth in their interviews with federal investigators. It’s not illegal to lie to the press, but it is illegal to lie to the FBI, and federal prosecutors routinely bring charges in such cases.
Flynn may have the most to lose since news reports suggest he misled FBI agents about whether he discussed sanctions with the Russian ambassador to the US in December. What he discussed with the ambassador appears to contradict what he told the FBI, but he also followed his denial to the FBI by saying he didn’t recall all of his conversation, and he disputes whether the exact terms he discussed really counted as part of Obama’s sanctions package. In other words, the case might not be that simple. But that could be a factor in why Flynn offered to testify before Congress in exchange for immunity from prosecution.
As Goodman notes, false statements are not that hard to pin down and are often used to convict high-profile people when prosecutors can’t necessarily prove the underlying crime, like with Lewis “Scooter” Libby, Dick Cheney’s chief of staff, who was convicted for lying about his role in the leak of an undercover CIA officer's identity.
The biggest issue is the political fallout
It's too soon to know what charges, if any, federal prosecutors might bring against Trump associates, let alone whether any would be convicted.
In the short term, the more immediately consequential issue is the possibility that some of Trump’s associates might flip on their bosses and reveal misdeeds by senior members of the Trump campaign or transition team.
Having top-ranking Trump associates convicted of criminal acts tied to the election would be politically toxic for Trump — and would also put him in a tough position.
“If we enter a phase in which the national conversation turns to whether the president will exercise his pardon power for some of the Americans currently under FBI investigation, we will have likely crossed over into a crisis of immense Watergate proportions,” Goodman says.
Stephen Vladeck, a national security law expert at the University of Texas, agrees — and says that whether Trump’s associates broke the law is likely to be just the opening act of this story.
“I’m not holding my breath about any of these cases going to trial,” Vladeck told me. “To me, the real story is whether indictments of any current or former senior Trump staffers might open the door to discovery of additional inappropriate and/or unlawful conduct by other senior Trump officials — perhaps including the president himself.”
That’s possible, of course. It’s also entirely possible that neither Trump nor anybody in his White House will end up facing any charges at all. The only thing we know now is that less than three months into the Trump era, this investigation is taking the US into entirely uncharted waters.