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Some of the responses to the news that Donald Trump Jr. met with a slew of Russians seem a tad unhinged. We should reject the outlandish claim that the meeting “borders on treason,” as former White House ethics lawyer Richard Painter put it. Moreover, it is far from evident that the meeting even violates campaign finance laws, as a number of legal scholars have asserted.
But we should also dismiss those who argue that the meeting is “such a nothing” (in the words of Trump Jr.). We can do so because that runs counter to months of insistent denial that there was any connection between the Trump campaign and the Russian government. It now seems clear that several members of that campaign were willing to make a connection.
Moreover, depending on how deep the Trump campaign’s connections with Russia turn out to be, it’s conceivable we will begin to hear serious — as opposed to silly — talk of impeachment. But we are not there yet.
We can dismiss the charge of treason quickly. The Constitution supplies a careful definition of that odious crime, one designed to make it more difficult to charge someone with the offense: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
Trump Jr. has not taken up arms against the United States, and, despite the uproar over Putin’s electoral interference, we are not at war with Russia. Hence Trump Jr., even if he is somehow assisting Russia, cannot be giving aid and comfort to an enemy. Asserting that Trump’s actions border on treason is akin to insisting that the United States borders on Myanmar.
There’s less to the argument about an “illegal campaign contribution” than meets the eye
Because the first claim rests largely on overheated rhetoric, the second, that Trump Jr. violated federal election laws, appears reasonable, at least by comparison. Under federal law, foreign governments cannot contribute to American election campaigns. Moreover, it is a crime for Americans to ask for (“solicit”) a contribution from foreign governments. By saying that he would “love” information about an allegation that individuals tied to Russia had funded the Democratic National Committee and were supporting Hillary Clinton, Trump Jr. is said to have solicited that illegal foreign contribution. Ironically, under this view, trying to uncover supposed illegal contributions by one’s political opponent can itself generate an illegal contribution.
The claim turns on a series of arguments, each of which is problematic and some of which are rather dubious, at least by my lights. (In this, I agree with the comments of my colleague Eugene Volokh, of the University of California Los Angeles and the Volokh Conspiracy blog.) For Trump Jr. to be convicted of a crime, he would have had to “knowingly and willfully” “solicit” a “contribution” from the Russian government — with a contribution being defined under the law as “ a gift ... or anything of value.”
Obviously, if Trump Jr. had written to the Russian government requesting a campaign gift, he would have solicited a donation. If he knew this act was forbidden, then he could be sent to jail. But what apparently occurred — at least from what we know so far — is quite removed from this scenario.
Some are claiming that supplying any useful information to a campaign counts under the law as something “of value.” To be sure, there are specific administrative rules that signal that sharing polling data with a campaign can constitute a contribution. And there is a Federal Election Commission ruling saying that supplying a candidate with a list of influential activists is a contribution. But to my knowledge, neither a court nor the FEC has ever said that any useful information conveyed to a campaign is, absent an exemption, a contribution, whatever its source.
There are good reasons for the absence of such a ruling. Reading “anything of value” to cover any useful information raises a host of troublesome issues. Campaigns routinely vacuum up information about opponents. They get tips, firsthand accounts, and scurrilous rumors. Is each one of these to be logged, appraised for value, and reported as a contribution? Moreover, candidates receive advice from veteran politicians about how to run the campaign. Is the sage advice of Barack Obama to a presidential nominee, urging the latter to focus on certain states or precincts, a campaign contribution?
Reporters are even known to share gossip with politicians. Have they made a contribution to those candidates with whom they share chinwag and a drink? If giving valuable gossip or information to a candidate is a contribution, our campaigns are currently awash in campaign finance violations. I daresay that Sen. Hillary Clinton’s campaign received tips, information, and innuendo from various quarters.
There is a “volunteer services” exception from the definition of “contribution.” Perhaps many of those supplying information and advice to a campaign gratis should be considered volunteers. But the exemption for volunteer services applies no less to foreigners. They too can volunteer in a campaign, as the SEC itself admits. If the volunteer exemption permits Obama to freely dispense extremely valuable advice or gossip to a candidate, it apparently permits Vladimir Putin or Theresa May to dispense valuable advice.
The exemption for volunteer services does not cover those who receive payment for their service. So if Barack Obama is being paid by some corporation to curry favor with a candidate and, in the process, dispenses valuable advice, that would be a contribution. So too would be a reporter who trades valuable gossip with a candidate, for she is being paid by her employer and thus apparently cannot claim the volunteer services exception.
If all information offered to a campaign counted as a “contribution,” election law would be transformed.
The larger point is that those who regard the passing of all valuable information as a potential contribution are advancing a position that would radically rework how campaigns are conducted and would severely restrict the flow of information to campaigns. In a sense, they are calling for a transformational change in practices and conceptions, all because of Trump Jr.’s meeting with a Russian attorney. Maybe they are right to push for this change. But it can hardly be said that existing federal election law makes clear that supplying gossip or advice is a contribution — even from representatives of a foreign government.
Let’s assume, however, that the giving of valuable information can constitute a contribution. What of “solicit”? By statute, solicitation is defined as any “communication that [in context] contains a clear message asking, requesting, or recommending that another person make a contribution” (emphasis added). Does Trump Jr.’s statement, in response to an offer of incriminating information about Sen. Clinton and the DNC, that he would “love” such information, count as a “clear message” requesting a contribution?
I don’t see it. If a salesman comes to my door and asks if I would like to buy a vacuum, and I say, “I’d love to,” I don’t believe I have solicited the salesman. In this case, the Russian lawyer came to Trump Jr., not the other way around. She wanted to give him information. He said, in effect, “Sure!”
The question of intent
Finally, criminal violations of the federal election rules must be knowing and willful. In 2007, the Department of Justice observed that this phrase requires “an offender who knew what the [election] law forbade and violated it notwithstanding that knowledge.” Now, Trump Jr. likely thought that the Russian government was involved in the meeting, and he hoped his interlocutors would supply damaging information. But does anyone think that Trump Jr., when he leaped at the chance to meet with what he thought was an attorney working for the Russian government, knew that he was violating the law? Of course not. The legal arguments that treat proffered information as a campaign donation are quite complex, and it seems farfetched to think Trump Jr. would have foreseen them.
The greater difficulty for Trump Jr. and, more importantly, his father has always been political. Having repeatedly and vehemently denied contacts with the Russian government, it is embarrassing that the son, son-in-law, and campaign manager of President Trump attended a meeting to acquire damaging information about Hillary Clinton from a supposed Russian government lawyer.
Labeling this “collusion” is unhelpful because this is not a legal concept. (It’s a bit like debating whether someone is a “friend” or an “acquaintance.”) Nonetheless, the more the Trump campaign is seen as working closely with the Russian government or as willing to do so, the worse will be its reputation. At the extreme, as I have suggested, the unearthing of extremely damaging facts about Trump’s contacts with the Russian government could prompt discussion of impeachment.
We are in the first quarter of a four-quarter game. Both the executive and the legislative branches are investigating. Their work will take time to complete. People must be patient. Yet Trump Sr.’s die-hard opponents insist on inflating every one of his perceived misbehaviors. His detractors bellow that he has violated the Constitution’s emoluments clause, that his campaign took illegal contributions, that he is a puppet of Vladimir Putin. And, oh, yes, he is a traitor to boot. The failure to distinguish what might be significant from the trivial or inconsequential will cause many Americans to throw up their hands and tune out.
When commentators strain and stretch and repeatedly trumpet that there is another “smoking gun” of criminal liability or constitutional violation, they lose credibility. Those pining for the political destruction of Donald Trump run the risk that the villagers will not come running if and when a wolf finally appears.
Saikrishna Bangalore Prakash is the James Monroe distinguished professor of law at the University of Virginia, senior fellow at the Miller Center, and author of Imperial From the Beginning: The Constitution of the Original Executive. He also blogs for the Volokh Conspiracy.
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