In June 2016, as the general election campaign was kicking into high gear, Donald Trump Jr. met with a Russian attorney named Natalia Veselnitskaya. The goal, as he expressly admitted in a statement issued on Sunday, was to attempt to acquire useful information on Hillary Clinton.
“I was asked to have a meeting ... with an individual who I was told might have information helpful to the campaign,” Trump Jr. said. “After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton.”
Trump Jr.’s defense was that the meeting didn’t actually end up bearing fruit: His statement says that “it quickly became clear that she had no meaningful information.” In other words, there’s no way this constituted meaningful collusion between the Trump campaign and Russia, because Veselnitskaya didn’t provide him with anything useful.
But experts on national security and election law say there’s a good case that this “defense” is, legally speaking, no defense at all.
Trump Jr.’s decision to meet with the Russian attorney to see what information she might have, they say, may well have violated campaign finance law. You don’t have to actually get useful help from foreigners, according to this law: The mere fact that Trump Jr. asked for information from a Russian national about Clinton, and heard her out as she attempted to describe it, might have constituted a federal crime.
“If what Donald Trump Jr. said was true ... then they should have never had the meeting in the first place,” Nick Akerman, an assistant special prosecutor during the Watergate investigation who now specializes in data crime, says.
In short? Donald Trump Jr.’s statement defending himself may well constitute a confession of guilt.
“The most important legal issue raised by these revelations actually goes to the question where collusion might be criminal under campaign finance law,” says Ryan Goodman, a former Defense Department special counsel and current editor of the legal site Just Security. “Even if the meeting didn’t produce anything ... solicitation itself is the offense.”
Why Trump Jr. may have broken the law
The statute in question is 52 USC 30121, 36 USC 510 — the law governing foreign contributions to US campaigns. There are two key passages that apply here. This is the first:
A foreign national shall not, directly or indirectly, make a contribution or a donation of money or other thing of value, or expressly or impliedly promise to make a contribution or a donation, in connection with any Federal, State, or local election.
The crucial phrase here is “other thing of value,” legal experts tell me. It means that the law extends beyond just cash donations. Foreigners are also banned from providing other kinds of contributions that would be the functional equivalent of a campaign donation, just provided in the form of services rather than goods. Like, say, information about Hillary Clinton’s alleged ties to Russia.
“To the extent you’re using the resources of a foreign country to run your campaign — that’s an illegal campaign contribution,” Akerman explains.
Here’s the second important passage of the statute: “No person shall knowingly solicit, accept, or receive from a foreign national any contribution or donation prohibited by [this law].”
The key word from Trump Jr., according to University of Wisconsin election law expert Rick Hasen, is “solicit,” which has a very specific meaning in this context. To quote the relevant statute:
A solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.
In short? If Trump Jr. asked Veselnitskaya, in person, to provide “anything of value” on Clinton, then there’s a real case that he illegally solicited a campaign contribution from a foreign national. Given that political campaigns regularly pay thousands of dollars to opposition researchers to dig up dirt, it seems like damaging information on Clinton would constitute something “of value” to the Trump campaign.
The solicitation bit is why it doesn’t matter if Trump Jr. actually got useful information. The part that’s illegal, according to the experts I spoke to, is trying to acquire dirt on Clinton, not successfully acquiring it. And his statement more or less admits that he did, in fact, solicit this information.
“The most recent [developments] are especially significant because they include specific statements on the record conceding the Trump campaign’s expressed interest in what the Russians could provide,” Bob Bauer, White House counsel for Barack Obama from 2010 to 2011, writes at Just Security. “Those statements show intent — a clear-cut willingness to have Russian support — and they reveal specific actions undertaken to obtain it.”
Trump appears to have recognized some danger. On Monday afternoon, he hired a lawyer, Alan Futerfas, to represent him on issues relating to the Russia investigation. So far, Futerfas has not responded to a request for comment.
The key issue: whether he knew he was meeting with a Russian
In order to actually nail Donald Trump Jr. on solicitation charges, experts say, prosecutors need to be able to show that he knew the person he was meeting with was a foreign national. If Trump Jr. believed that Veselnitskaya was American when he requested information from her, then he would not have been soliciting information from the Russians.
Trump Jr.’s statement gives him a tiny bit of wiggle room on this point. In it, he says: “I was not told her name prior to the meeting,” implying that he didn’t know much about the person he was meeting — perhaps including, among other things, her nationality.
According to Goodman, the former Defense Department special counsel, this line is the one thing that keeps Trump Jr.’s statement from being a clear-cut confession of having violated the law. But Goodman is skeptical that Trump Jr. really knew nothing about a person he was meeting on such a sensitive subject
“I think it would turn on the fact of whether he knew he was going to be meeting with a Russian national. And I don’t think it’s plausible that he did not know ahead of time,” Goodman says.
But even if we stipulate that Trump Jr. didn’t know anything about the person he was supposed to meet until they sat down, he’s still not off the hook. He would need to show that he was still unaware of her nationality when he asked for information about Clinton during the meeting. By his own account, “pleasantries were exchanged” before they started talking about Clinton and Russia, which makes it hard to believe that Trump Jr. wasn’t aware of her nationality.
“Apparently, when she came in and introduced herself, the Trump campaign team was still uninformed about her identity and did not ask about it,” Bauer writes. “Suffice it to say that this is a strange account and investigators will probe it deeply.”
The key point here, for those of you following along at home, is that Trump Jr.’s statement has put him in a very precarious place. If Bauer, Goodman, and Hasen are reading the statute correctly, then Trump Jr. has now openly admitted damaging facts that prosecutors would otherwise need to prove to make a case against him.
“I’d want to get everyone who was involved in that meeting in front of a grand jury, and find out what they say about what happened there,” Akerman, the former Watergate prosecutor, said when asked what he’d do in light of the recent news.
Mr. Futerfas certainly has his work cut out for him.