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Here's the real loser in Trump Jr.'s Russia scandal

  • Donald Trump Jr.'s decision to meet with a Russian lawyer was certainly an example of sleazy behavior.
  • But it's unclear if it was a crime, and proving it will definitely be difficult legally.
  • The knee-jerk reactions to this threaten the Trump administration's ability to govern, and the legal protections of all Americans.
Donald Trump Jr. arrives ahead of the inauguration with his father aboard a U.S. Air Force jet at Joint Base Andrews, Maryland, U.S. January 19, 2017.
Jonathan Ernst | Reuters
Donald Trump Jr. arrives ahead of the inauguration with his father aboard a U.S. Air Force jet at Joint Base Andrews, Maryland, U.S. January 19, 2017.

It's what we're all dying to know right now: Was it illegal for Donald Trump Jr. to meet with an alleged Kremlin-connected attorney who promised to give him dirt on then-candidate Hillary Clinton?

In an email chain that was published on Tuesday, publicist Rob Goldstone tells Trump Jr. that he can connect him with the attorney who has dirt on Clinton. Goldstone, who was known in Trump circles for managing a Russian pop-star, adds that the information comes from the highest levels of the Russian government.

"This is obviously very high level and sensitive information but is part of Russia and its government's support for Mr. Trump" Goldstone's email says.

Trump Jr.'s reply: "If it's what you say I love it especially later in the summer."

It sounds bad. Because it is against campaign finance law to "solicit, accept or receive" contributions or "anything of value" from a foreign national for a U.S. political campaign. And damaging information about a rival could be conceived as something of value.

But this scandal is also the latest example of partisan combatants trying to use the law as political weapon. And all of us, whether we're pro-Trump, anti-Trump, middle of the road, or indifferent, are worse off for it.

First and foremost, was it really illegal for Trump Jr. to meet with a woman purported to be a Kremlin-connected attorney, (a designation that attorney denies and so does the Kremlin), last year to discuss dirt on the Clinton campaign?

You can ask ten different legal experts and get ten different answers.

Some lawyers are quickly jumping on the guilty bandwagon.

Jeff Jacobovitz, a lawyer who has represented subjects of independent counsel investigations, including White House officials and employees, tells CNBC "it's as close as you can get to a smoking gun." Jacobovitz has company in former federal prosecutor Paul Butler who also uses the "smoking gun" analogy.

And then there are others. Democrats like Amy Jeffress, a former top Justice Department national security lawyer in the Obama administration says she's not even sure collusion is a crime. And Harvard Law School Professor Emeritus Alan Dershowitz simply says the email chain itself does not prove that any crime was committed.

Dershowitz does believe however, that the matter should be investigated more thoroughly by the proper authorities, which will likely include Special Counsel Robert Mueller and the Justice Department.

One thing is for sure: Proving this in court and getting a conviction is no easy task.

And while the political damage to Donald Trump and his administration is hard to calculate, Trump isn't the only one with a lot to lose.

Continued focus on the Russian collusion story is hindering the business of governing the country and hurting both the Trump administration and the Democrats.

The problems come in when the actual legal system is abused to score political points. As Dershowitz wrote on Tuesday, every American's legal protections are threatened by this kind of political takeover of the criminal justice process:

"When non-criminal conduct that is deserving of political criticism is investigated as criminal, both sides lose," Dershowitz wrote. "Even more importantly, all Americans lose important civil liberties protections guaranteed by our Constitution."

In my opinion, the knee jerk reaction of demanding prosecutions and itching to jail political opponents is like venturing into Third World banana republic territory. And it's not just Democrats. Trump supporters with their continued chants of "lock her up!" against Hillary Clinton, are guilty of this too.

Partisans simply must temper their reactions to these things and limit them to scoring political points, not conjuring "treason" or demanding prosecutions. And in this case, those points are considerable.

There are political battles to be won, and won rather easily, by keeping the focus on slimy campaign behavior, but not criminality that is hard to prove. The 2018 elections are just around the corner and every bill the Trump team presents is an election of sorts.

But opponents risk losing those battles when they come off as gleefully trying to pin their political opponents with crimes like treason.

In that sense, the behavior of President Trump, his family and his current and former campaign aides are like the La Brea tar pits of politics right now. It seems like it should be easy to keep the focus on the sleaze and let them drown in it.

Instead, the president's opponents just can't seem to stop from jumping with full force all over every new bit of prey that arises, and then getting hopelessly stuck in the muck themselves. It would be better for them and the country if they kept it about politics and left the legal prosecutions to the actual prosecutors. If they don't, that makes the American people the biggest losers of all.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.