Good Friday Morning! Welcome to the road issue of the Outsider Perspective. I’m traveling this week for business in the American West. By the time you read this, I’ll probably be wheels up in the sky headed back home. But I write this newsletter from the beautiful Camby Hotel in Phoenix, Arizona. If you’re ever out in the Phoenix area and need a hotel – I recommend it (not an ad, just a happy business traveler/customer).
Without question the big story this week is the revelation that Donald Trump Jr. and several Trump campaign associates met with a Kremlin-linked lawyer to receive potentially damaging information about Hilary Clinton. The story has reinvigorated claims that the Trump campaign colluded with the Russian government to sway the election outcome.
I’ll go into that story and explain how a lawyer views it. Must read links of the week will follow. Shorter newsletter this week since I’m on the road. First up, my pieces at the Conservative Institute.
New this week at the Conservative Institute
The Heritage Foundation released a report that samples convictions of voter fraud across the country. I go through some of that report, what it says, and what limitations there when focusing solely on fraud. It’s a frank discussion of the issue of voter fraud without the hyperbole. I’ve looked at the data and worked on multiple campaigns and can say without hesitation: election integrity is something that should unite both parties.
Judicial Watch, the conservative watchdog group that’s responsible for helping to bring multiple scandals to the fore surrounding Benghazi and the Clinton email server has turned their attention to Jane Sanders, the wife of Bernie Sanders, and the FBI investigation surrounding them both. I go through the emails Judicial Watch received via FOIA requests and what we can learn from them.
Based on the evidence we have: What Donald Trump Jr. did was unwise and dangerous – but not illegal
Everything about the story involving Donald Trump Jr. is wrong – and suggests there is far more to the Trump-Russia connection than meets the eye. Trump and his associates have repeatedly lied about their involvement with Kremlin-linked officials. Each new revelation, like this one, reinforces that the Trump’s are lying about their relationship.
However, never take anything a person linked with the Russian government says at face value. The Russians are infamous for misdirection and manipulation – it would not be beyond them to set up a meeting like this as a honey-trap for the Trump family (see, for example, how they treated Stalin’s daughter who defected to the US at the height of the Cold War). In other words: I don’t trust what Trump, the Kremlin-linked lawyer, or anyone is saying about this encounter. Anyone who takes the bold step of completely trusting any source involved is just trying to confirm their internal biases.
Legal pro tip – never send this type of email
One of my jobs as a lawyer is to read the emails of everyone involved in a case. I’ve seen the private emails of everyone from a Fortune 500 CEO to the new employee on the lowest rung. Donald Trump Jr.’s decision to send that email showed a startling lack of judgment.
First off, you should never assume that your email is private. As a lawyer, I assume my work and private emails are open – or could be in the future. You shouldn’t store things on there that you don’t want in the open.
Secondly, you should never trust out-of-the-blue emails like this one. If it appears to be too good to be true in an email, it probably is. A person with that type of information would never email it – they’d find less accessible means of communication.
Finally, just because you’re talking to a lawyer, that doesn’t mean the Attorney-Client privilege covers you. There was no legal relationship between these parties. So there’s no way anything could be held back by that legal privilege.
In short, never that kind of email. Ever. Never trust a sender like that either.
The Collusion Question: The intent is there, but the crime isn’t
Of all the legal problems involved with this email, the collusion issue is the easiest to answer. The email, the meeting, and the people involved don’t constitute criminal collusion. It is, however, astonishingly stupid, lacking in any judgment, and utterly indefensible for anyone in the Trump campaign to meet with a known Kremlin-linked person.
But not criminal.
Here’s why, while the intent to try and obtain information from the Russians is present, there’s no follow-through. The lawyer that Don. Jr. spoke to didn’t have information, and there’s no evidence they obtained any information that could have harmed Clinton. So while the intent was there, they failed to commit what one could term criminal collusion.
But just because something isn’t a form of lawbreaking – that doesn’t make it right. Furthermore, the degree to which the Trump’s have lied about their communication with Russian-linked individuals destroys any credibility they have to declare this a “nothing burger.”
The Kremlin may lie, but the Trump’s lie too. Congress has complete justification to investigate deeper. The truth must be made known.
The FEC Question: It’s not clear what this lawyer was offering had monetary value covered by “donations” rules
Everything I stated above is largely uncontroversial in legal circles – including liberals. A majority of the legal discussion surrounding this meeting is not centered on collusion, but rather whether Don. Jr. violated Federal Election Commission rules in accepting “something of value” from a “foreign donor.”
The chief proponent of this claim is well-known liberal law professor Rick Hasen. The gist of the argument is this: by soliciting negative opposition research against Hilary Clinton, Trump’s campaign violated campaign finance laws by trying to accept something of value without disclosing it.
In other words, Hasen and others are making the argument that merely ASKING for information from a foreign and official, and getting NOTHING in return, amounts to an illegal donation. Specifically, Hasen is twisting a specific statute that makes it illegal to accept from a foreign agent: “a contribution or donation of money or any other thing of value.”
They’re arguing that the request from Trump and the lack of information amounts to “a thing of value.” There are two problems with this immediately. First, FEC rules have never been twisted so far backward to include talking to a person and getting information as “a thing of value.” No case law exists supporting this absurd position.
Second, as law professor Eugene Volokh points out, banning a form of speech because it may have “value” runs into serious First Amendment concerns:
First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights. See Bridges v. Wixon, 326 U.S. 135 (1945) (“freedom of speech and of press is accorded aliens residing in this country”); Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) (“We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders,” including ones who are not permanent residents).
Second, Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?
The only case law out there that’s upheld similar bans is on foreign money donations. So, for instance, if Don. Jr. had been accepting a check from the Russian lawyer, even without connections to the Kremlin, that would be a direct violation of FEC rules (and there are good reasons behind that in preventing a foreign government from pumping money into America to sway an election).
A lot of immoral actions, but no crime
If I were to sum it up, I’d go with that headline. The arrogant stupidity it takes to make mistakes like this is astounding on the part of Trump and his associates. The Trump family as a whole has lost all benefit of the doubt in regards to the Congressional and Independent Russian investigation. You can’t claim it’s a witch hunt when you’re repeatedly caught lying.
But with all that said, the evidence we have RIGHT NOW does not point to any crime or impeachable offense. It’s remarkably bad decision-making that is indefensible. And because everything relating to the Trump-Russia is indefensible, Congress has a duty to investigate.
Postscript: For the real legal nerds out there, there’s a third legal argument: Did Donald Trump Jr. violate the Computer Fraud and Abuse Act? This question involves a far more technical and nuanced argument, which is why you don’t see it in the headlines. Lawfare has great article breaking down this case and the pros and cons. Check it out if you want to jump into the law nerd deep end.
Must read links from the past week
David Brooks and the language of privilege – Robert Pondiscio, The Thomas B. Ford Institute
Trump, Russia, and the Misconduct of Public Men – Andrew C. McCarthy, National Review Online
Trump Jr. just defined ‘disgraceful’ – John Podhoretz, The New York Post
ABC News: Christians Who Believe In The First Amendment Are A ‘Hate Group’ – Mollie Hemingway, The Federalist
‘Killed’ in Vietnam and buried with comrades, one Marine returned from the dead – The Washington Post
The opioid crisis: No one’s fault, and everyone’s fault – Salena Zico, The Washington Examiner
The Book of War: Donald Stoker’s new book on Clausewitz helps dissect Clausewitz’s complicated legacy – Henrik Bering, The New Criterion
Arkansas Bans Herbicide as Farmers Blame Neighbors for Crop Damage: States add restrictions and fines as hundreds of farms in Arkansas, Tennessee, Missouri and Mississippi report crops shriveled by dicamba – The Wall Street Journal
Note: This is a subscription piece. If you have a WSJ subscription, I recommend it. I read it on the plane during the week. It’s an interesting developing story in the agriculture field. The St. Louis Post-Dispatch has an update to it that is not subscription based: “Tennessee joins states taking action on dicamba; Missouri imposes restrictions.“
Yes, Trump Can Accept Gifts: On Presidents and the Emoluments Clause – Josh Blackman and Seth Barrett Tillman, The New York Times
Satire piece of the week
CNN Report: Millions Of American Voters May Have Colluded To Elect Trump – The Babylon Bee
U.S.—A new, exclusive CNN investigative report revealed Thursday that millions of American voters may have potentially colluded with the Trump campaign to elect Donald Trump as President of the United States.
While Russia has been accused of interfering in the election, the breaking report indicates that the collusion may have extended to a significant portion of the U.S. population—“as many as 60 million citizens, and possibly even more.”
“The conspiracy goes much deeper than anyone expected,” Jake Tapper said on his news segment The Politics Lead. “We’re talking tens of millions of people involved in this secret plot to make sure Hillary didn’t make it into the White House and to prop up Donald Trump as the winner.”
Thanks for reading!