Donald Trump Jr. may well have committed a federal crime, experts say

Donald Trump Jr. arrives before the start of the second day of the Republican National Convention on July 19, 2016 at Quicken Loans Arena in Cleveland, Ohio.
Jim Watson | AFP | Getty Images
Donald Trump Jr. arrives before the start of the second day of the Republican National Convention on July 19, 2016 at Quicken Loans Arena in Cleveland, Ohio.

Donald Trump Jr. met with a Russian lawyer in June 2016 with the express purpose of getting information the Russian government had acquired on Hillary Clinton, according to a New York Times report published on Monday night. If this account is true, experts on national security and election law say, then there is a very real chance that President Donald Trump's son committed a federal crime.

Trump had already admitted in a statement that he took the meeting with the attorney, named Natalia Veselnitskaya, to get useful information on Hillary Clinton. His defense of his actions was that the meeting didn't bear fruit: 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 — especially in light of the Times report.

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Trump Jr.'s decision to meet with the Russian attorney to see what information she might have 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 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.

If the Times report is right, then at least one expert is willing to go further — and say outright that Donald Trump Jr. likely committed a crime.

"The law states that no person shall knowingly solicit or accept from a foreign national any contribution to a campaign of an item of value," explains Ryan Goodman, a former Defense Department special counsel and current editor of the legal site Just Security. "There is now a clear case that Donald Trump Jr. has met all the elements of the law, which is a criminally enforced federal statute."

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, damaging information the Russian government collected about Hillary Clinton.

"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 California Irvine 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 from a foreign source, 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 Times report — if true — blows the best defense he has out of the water

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 Sunday 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 of from being a clear-cut confession of having violated the law. "I think it would turn on the fact of whether he knew he was going to be meeting with a Russian national," he says.

But if the Times is correct, Goodman says, this excuse is blown out of the water. The email would prove that Trump Jr. went into the meeting with knowledge that he was going to the meeting in an attempt to solicit information from the Russian government.

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. And the New York Times has reported on the existence of an email — something that would be relatively easy for prosecutors to find if the Times' sources are correct — that would prove that Trump Jr.'s intent was to solicit information from a foreign source. It seems likely that this is exactly what federal prosecutors are going to look into.

"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.

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