1. Preet Bharara, the ex-U.S. attorney fired by the Trump Administration, tweets…
Quick reminder: something doesn’t have to be illegal for it to be foolish, wrong and un-American.
True. When Donald Trump, Jr. was informed that a Russian lawyer wanted to meet with him to pass along damaging information about Hillary Clinton, he should have gone to the FBI immediately, because this could have been indicative of a national threat. Instead he said “Whoopie!” or words to that effect. Moron.
But we knew that.
*Notice of Correction: In the original post, I erroneously stated that Bharara had joined Mueller’s team investigating Russian interference with the election. That was incorrect. I apologize. I was confused by this headline from the Washington Examiner: Special counselor adds former Preet Bharara prosecutor to Russia probe: Reports. It’s a bad headline, but I should have read the whole article. Careless.
2. Similarly, if Danny Jr told Kushner and Manafort what he was told the meeting would be about, THEY should have told him that the meeting was a bad idea, and to report it. They are slime-bags, and none too bright either.
We knew that, too.
3. It may be pure moral luck that this didn’t turn into a serious breach of election laws. But the fact is that no information changed hands, as far as we know. There was no “collusion,” which isn’t a legal term anyway.
4. The New York Times, from its good side, actually detailed the legal realities of the case, which ironically show how absurdly over-heated and misleading its own coverage is. The Times consulted with legal experts who said,
- The events made public in the past few days are not enough to charge conspiracy. Renato Mariotti, a former federal prosecutor said the revelations are important because if further evidence of coordination emerges, the contents of the emails and the fact of the meeting would help establish an intent to work with Russia on influencing the election…at least on Donald Trump Jr.’s part.
But as has been the situation throughout, the episode is still waiting for real evidence of genuine collusion between the Russians and the Trump campaign, and this wasn’t it. The anti-Trump mob, in the news media and out of it, is so, so eager, so desperate, to prove sanctionable wrongdoing that it is pouncing on everything that contains a shred of hope.
- There has to be an underlying federal offense that is being conspired to be committed. So far, there is no evidence of that, and the aborted meeting with the Russian lawyer didn’t come close.
If the e-mails released yesterday specified that what was being offered had been obtained by an illegal computer hack, that would be enough. They didn’t.
- A federal law, Section 30121 of Title 52, makes it a crime for any foreigner to contribute or donate money or some “other thing of value” in connection with an American election, or for anyone to solicit a foreigner to do so. As I wrote yesterday, “of value” probably doesn’t apply to mere information. There is no precedent for prosecutions under that statute relating to information. The Times hopefully notes that Courts have held, in other contexts, that a “thing of value” can be something intangible like information, but in other contexts, in the law, is a big qualification.
Orin S. Kerr, a George Washington University professor and former federal prosecutor, was dubious that the statute could be made to fit this scenario.
“The phrase ‘contribution or donation’ sounds like a gift to help fund the campaign or give them something they otherwise would buy that is the standard, that doesn’t seem to be met, based on what we know so far, because this wasn’t something that someone else could have gathered that was for sale in a market or would be otherwise purchasable.”
- The Times agrees that “the precise nature of the promised damaging information about Mrs. Clinton is unclear, and there is no evidence to suggest that it was related to Russian-government computer hacking that led to the release of thousands of Democratic National Committee emails.” Nor is there evidence that has been made public or alluded to of any discussions between Russian officials or surrogates and the Trump campaign about disseminating the emails of Democrats that American intelligence officials say Russia hacked.
5. Is that clear? This episode shows, at worst, that Trump’s son might have been willing to accept information that was not necessarily illegally obtained.
6. And that Don Jr. is an unethical dimwit. Just like his Dad.
7. The episode also shows the danger when utter amateurs get involved in national politics, foreign policy and government at high levels. All of the Trumps are naifs at this; I doubt Don, Jr. knew that he was treading close to some legal lines, but that’s no excuse. It’s his responsibility to know the laws. We claim to want outsiders, but this kind of blundering inevitably comes with outsiders, especially when they are also dumb and unethical.
8. It isn’t “Everybody Does it” or a deflection to ask why this story about the Clinton campaign didn’t get similar traction:
Politico‘s Kenneth Vogel and David Stern reported in early January that the DNC contacted officials from the Ukrainian government for their own oppo research efforts. These contacts did not involve cut-outs, as Veselnitskaya may or may not have been, but did directly assist in searching for damaging information that could be used in the election….But where Trump’s own flesh and blood was involved in clandestine meetings, the DNC was careful to keep Clinton and her family at arm’s length, handling the connections to Ukrainian officials through operative Alexandra Chalupa. Chalupa, whose work included engaging with expatriate Democratic voters, suspected Manafort was using his Russian connections to boost Trump. According to Politico, she began coordinating with officials at Ukraine’s Washington embassy to expedite her research, in the hopes of provoking Congress into holding a hearing before the election about Russian contact with the Trump campaign.
Well, we know why: the news media is out to get Trump, but will always protect Democrats, and bury such news if it can. Also, what the DNC did was slick and professionally unethical, unlike Donny Boy’s floundering.
9. Hypothetical: Illegal Russian hacks manage to find the 30,000 e-mails Hillary Clinton had destroyed. The Russians approach the FBI and offer to turn them over. The FBI is investigating Clinton’s e-mails at the time. in the conversations between Russia and the FBI, the Russians say, “We are enthusiastic about the likelihood that this evidence will result in Mrs. Clinton’s defeat.”
Questions:
If the FBI accepts the e-mails, will the agency be colluding with the Russians?
If the FBI releases them to Congress, will it be assisting in a foreign effort to influence our election?
If it was Trump’s intent to turn what he received from the Russians over to the FBI, would he still be “colluding?”
Ethics Alarms 
Not a constitutional lawyer but foreign nationals who are on US soil have First Amendment rights, like freedom of speech and assembly. Wouldn’t there be a constitutional problem with reading the statute so broadly that mere information can equate to “contribution or donation” such that a foreign national cannot provide information to a political campaign, and vice-versa?
By the way, totally agree about Trump Jr.
“The Times hopefully notes that Courts have held, in other contexts, that a “thing of value” can be something intangible like information, but in other contexts, in the law, is a big qualification.”
And to try to make the connections between those contexts and this particular situation and have that attempt pass through the court process, would, I think, damage precedent and the scope of laws for generations, and be more hazardous to our system than simply shutting the hell up and giving Trump a chance to finish his 1st term with some friggin breathing room for crying out loud.
Thanks for this article, by the way.
Meanwhile… In the Good News category
http://dailycaller.com/2017/07/09/youre-fired-trumps-va-terminates-500-suspends-200-for-misconduct/
“Five hundred and forty-eight Department of Veterans Affairs (VA) employees have been terminated since President Donald Trump took office, indicating that his campaign pledge to clean up “probably the most incompetently run agency in the United States””
“Another 200 VA workers were suspended and 33 demoted, according to data newly published by the department as part of VA Secretary David Shulkin’s commitment to greater transparency. Those disciplined include 22 senior leaders, more than 70 nurses, 14 police officers, and 25 physicians.
Also disciplined were a program analyst dealing with the Government Accountability Office, which audits the department, a public affairs specialist, a chief of police and a chief of surgery.
Many housekeeping aides and food SERVICE workers — lower-level jobs in which the department has employed felons and convicted sex offenders — were also fired.”
452 People were fired, about 200 suspended, and 33 demoted from the VA for malfeasance. It’s almost like what accountability looks like.
Good
Amen, brother
Oh, stop, you know somewhere somehow this can be spun into a policy Obama was getting ready to implement.
Or a completely vindictive and racist, homophobic, anti-feminist, anti-gay, and hateful action that will KILL people, that only Trump is vile and evil enough to perpetrate on a totally innocent government agency that all right thinking people love. (channeling the on-a-dime thinking that resulted in the Comey nonsense.
You know what I think is really cool about the whole Donald Junior thing? Especially compared to the whole Hillary Clinton thing? Conservatives aren’t asking how the media got leaked copies of those Emails. I can only imagine the hand wringing that would have occurred if instead of Don Jr.’s Emails, it had been say… Weiner’s and if instead of a meeting with a *gasp* Russian! *faints on his couch* it had detailed foreign donations to the Clinton campaign. Well. I’ll leave that to you, dear reader.
Thanks for the article, Jack. Agree with it.
In answer to your questions…
Would information obtained through illegal actions be legally admissible as evidence, even though the people who obtained the information are not members of law enforcement? It seems like that could create incentives for actual collusion, i.e. Russia violates privacy in the U.S. and gives the information to the FBI, and the CIA does the same for Russian citizens or something.
I’m not sure if it would somehow be possible to issue a warrant for the information retroactively. “We have here a warrant for information you destroyed. Luckily some foreign hackers already hacked you and copied the information, and this warrant allows us to accept the information from them.”
Even if the information isn’t admissible in court, I would be sorely tempted to tell the hackers to just release it to the public. I’m not sure if that’s a good precedent, either, though, because it still incentivizes contracting out violations of privacy to foreign hacker mercenaries.
Not that I don’t think that hackers exposing corruption isn’t an important check on corrupt politicians (though it shouldn’t have to be), but we don’t want this to just keep happening to everyone, and there’s really no way to ensure it only happens to the “right” people, or even that it happens to all political parties equally.
“Would information obtained through illegal actions be legally admissible as evidence…[?]”
I am going to try to answer that before a real lawyer does. This is a test of what I learned in the law courses I took – long, long ago. So, whatever the right answer is, my answer remains how I think I learned it (and is the answer that I think should still be the right answer today).
Short Answer: no.
Would information obtained through illegal actions be legally admissible as evidence, even though the people who obtained the information are not members of law enforcement?
In a criminal case, no.
In a civil case, usually yes.
And in an Election…
Yes.
My go-to on questions like this is Eugene Volokh, and he has a piece today with similar hypotheticals, Jack, and concludes that most of the left’s fever dreams (my characterization, not his) would be foreclosed by the First Amendment.
Richard Hasen makes an opposing argument in Slate that Volokh still finds unconvincing. Hasen is a leftist election law expert and Volokh a libertarian First Amendment expert. It is an interesting dichotomy, and they both take largely absolutist positions.
I’m more persuaded by Volokh, but that is not to say that Hasen does not make a strong and effective argument, because he does. I just happen to think Volokh’s ultimate point:
is far more compelling than Hasen’s argument in toto.
To reach Trump Jr.’s conduct, Volokh argues that it would require the statute to be unconstitutionally overbroad. Hasen mostly argues the merits of the law’s intent, and takes the position that it should be read just narrowly enough to capture Trump Jr. and similar conduct:
This seems to me to be asking the court to reject the First Amendment altogether as it applies to campaign finances, at least in part. As a full-throated opponent of Citizen’s United, this is unsurprising, I suppose. Hasen mostly focuses on the FEC as the ultimate arbiter of election law, and of course Volokh’s main appeal is to Supreme Court judgments.
As an organizational expert, Jack, I think you might also throw in your thoughts on the substantial downsides of nepotism in organizations. I think this incident shows what a bad idea it is to employ your children in an organization you’re running. Not to mention the downside of hiring children who are inexperienced.
Is it safe to project that this recent Trump Jr. drama will lead to additional federal election laws about presidential and Congressional campaigns that require every instance of contact between an election campaign staffer and a known foreign national to be reported in detail by the campaign within 3 days of the contact? And further, that every individual employed by, or initiating contact with, such a campaign (including campaign donors, for any contribution over, say, $50) submit a completed, signed federal form that discloses detailed information indicative of, if not also explicitly stating, the individual’s nationality, to include details of personal and business interests in all countries in which such interests exist?
Jack,
I don’t know what, if anything, this means for your analysis (I’m not at home and so the video here doesn’t have sound), but this just broke:
http://www.cnn.com/2017/07/12/politics/video-trump-relationships-russian-associates/index.html
Now there’s a smoking gun. Start the impeachment. Tell Hillary and Bill to call the movers.
Huh…didn’t DTJr already identify that the contacts knew President Trump via those exact Miss Universe pageants related to the video?
How is this new intel?
Yeah, I kind of have to agree. We already knew about Trump’s association with these people, and the “exclusive” video doesn’t offer anything revealing. I think this is an actual example of CNN being hyperbolic in its coverage of Trump.
A scene from “The Russians Are Coming!”https://m.youtube.com/watch?v=ybcBhg8rw6w:
I couldn’t resist.
If they were running that movie and not ALL the President’s Men, it might signal that the fever is breaking.
Let’s try this again:
Everybody to get from street. – Alan Arkin.
The laws at issue are rarely used and most definitely are subject to interpretation. I’ve been reading tons of legal analysis on this. It is very possible that laws were broken here — but I personally am not willing to give an opinion one way or the other as this is not my field.
Thing is, it’s not anyone’s field. There are virtually no cases.
It would be nice if a single journalist would write what you wrote…but that would make the grandiose presentation look as misleading as it is.
I have seen several journalists write that it’s unclear whether or not laws were broken in this case.
Jack I have seen nothing to confirm that Mueller hired Preet Bharara to work on the investigation, which would be a huge and controversial story if it happened.
I did. I’ll try to find it.
You are right, I was sloppy. I’ve fixed it. Here’s what I just added to the post:
*Notice of Correction: In the original post, I erroneously stated that Bharara had joined Mueller’s team investigating Russian interference with the election. That was incorrect. I apologize. I was confused by this headline from the Washington Examiner: Special counselor adds former Preet Bharara prosecutor to Russia probe: Reports. It’s a bad headline, but I should have read the whole article. Careless.
I can’t find anything to verify that.
Isn’t that an assumption?
Jack,
Other than those two things, I pretty much agree with you on this blog.
Part 2 was snark. I do think it is a concern. He should not accept such an appointment.
Just found my source—a muddled headline. He’s not on the team. I’m making a correction.
First off, let me apologize for being such an asshole yesterday. I’m sorry.
I’m glad you call Don Jr.’s actions here unethical. In the initial post it was unclear to me whether you believed that; you said his turning over the e-mails made him an “ethics hero” and saved all your condemnation for the media. From this I leaped to the conclusion that you did not consider Jr.’s actions unethical, and I reacted badly. But I should know better by now that you often take a few days to wrestle with issues like this, and just because you don’t make a certain conclusion right away in one post doesn’t mean that it isn’t coming later. My bad.
I am curious on anyone’s thoughts about this article by Andrew C. McCarthy. He also agrees that Don Jr.’s meeting was probably not illegal, but still amounts to, in his words, “collusion,” and that following this trail could lead to finding grounds for impeachment. I was surprised to read this in the National Review–even though they were “NeverTrump” during the campaign, they’ve been more supportive since, and McCarthy himself has defended Trump on issues such as the travel ban.
http://www.nationalreview.com/article/449401/trump-jr-emails-high-crimes-misdemeanors
Unless Jack has granted some sort of reprieve that hasn’t been announced yet, I think a word of warning is appropriate: Alot of times, guys who breach their suspensions end up having their suspensions extended…
Jack also told him “You will be welcome to post non-asshole comments as of 12:01 AM, 7/12/2017.”
https://ethicsalarms.com/2017/07/11/ethics-hero-donald-trump-jr/comment-page-1/#comment-455355
I assumed the “week” was a more definitive statement, seeing as the “12:01 AM, 7/12/2017” appeared to be a typo…otherwise the suspension appears to have been lifted a good 10 hours and 26 minutes BEFORE the suspension prompting commented occurred.
But I’m not having an argument with you on this side topic. I think my warning to Chris is gentle and fair.
YIKES! That was a typo. A Freudian slip of sorts. That’s 7/19/2017 But I accepted Chris’s regrets, and all is peaceful and as it should be.
Chris: I appreciate the apology, and withdraw the suspension. It was a bit hair-trigger, I think; you know how in baseball they say a “magic word” will always get a player arguing with the umpire thrown out of the game? Impugning my ethics alarms is like that for me.
Welcome back, and the slate is clean.
Thanks, Jack.
And thanks for the warning, tex. I do have to say I wouldn’t have commented at all today had I not been confused by the typo–I genuinely thought that was Jack reducing the amount of time for the suspension from “a week” to “one day.” After I left these comments, I saw on the “Morning Warm-Up” post that Jack did intend to suspend me for a week, and panicked. Please know that I would never disrespect Jack or this blog by trying to get around a suspension.
“Section 30121 of Title 52, makes it a crime for any foreigner to contribute or donate money or some “other thing of value” in connection with an American election …………..”
An Illegal’s vote comes to mind. And what happens to them? Illegals are rarely prosecuted for voting and it happens often. Personally, I wish they’d get off the Russian interference crap and start going after the illegal voting fiasco. If you don’t believe there’s a problem pay attention to Judicial Watch and become enlightened.
Perhaps Donald Trump Jr. should have gone to the FBI.. That would have been ethical. It also would have been monumentally stupid to give such information to a law enforcement branch that had repeatedly shown its inability to keep such information confidential. Which is more unethical: To fail to properly inform authorities of possible wrongdoing, or to give an unethical administration the ability to manipulate election results through carefully-timed leaks? (The probable headline a few days before the election: “Trump Campaign Admits to Russian Election Interference!”)
Now we are finding out that the Russian in question was allowed to be here by some special dispensation from the Obama Admin… and overstayed her visa, or whatever she had.
I’m not saying this was a set up, but that in itself is suspicious. After all, we know the Obama Admin unmasked Trump’s people in intelligence intercepts, and they weaponized the IRS, so why not?
9. Hypothetical: Illegal Russian hacks manage to find the 30,000 e-mails Hillary Clinton had destroyed. The Russians approach the FBI and offer to turn them over. The FBI is investigating Clinton’s e-mails at the time. in the conversations between Russia and the FBI, the Russians say, “We are enthusiastic about the likelihood that this evidence will result in Mrs. Clinton’s defeat.”
Questions:
If the FBI accepts the e-mails, will the agency be colluding with the Russians?
If the FBI releases them to Congress, will it be assisting in a foreign effort to influence our election?
They would be “colluding” insomuch as they’re cooperating, but it seems to me the FBI should have the right to look at whatever evidence they can legally get their hands on in an investigation. Would taking illegally hacked info from a foreign government be legal for the FBI? Would such evidence be admissible in court? I have no idea.
If it was Trump’s intent to turn what he received from the Russians over to the FBI, would he still be “colluding?”
It would depend on whether he used any of that intel to his campaign’s advantage. Since the likelihood of not doing so, even unintentionally, is extremely low, it would be unwise to even take the risk, which is why he should have informed the FBI immediately.