Let’s Charge Trump Jr., Kushner, And/Or Manafort With Espionage

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Via Michel Paradis from a longer piece for Foreign Policy & Lawfare

The current focal point of the Russia scandal is the confab at Trump Tower, an Apalachin meeting of sorts in which at least eight agents of the Trump campaign and the Russian government met to discuss the Russians’ opposition research on the Clintons. The Russians apparently offered this information in exchange for the Trump campaign’s willingness to hear them out on the Magnitsky Act. Donald Trump Jr. has protested that nothing ever came of this.

Over the weekend, however, the Associated Press reported on an interview it conducted with one of the Russians at the meeting. Rinat Akhmetshin, a Russian-American lobbyist and former Soviet military officer, claimed that the Russian lawyer who ran the meeting, Natalya Veselnitskaya, not only promised to give the Trump campaign dirt on the Clintons, but actually presented her interlocutors with “a plastic folder with printed-out documents that detailed what she believed was the flow of illicit funds to the Democrats.”

Apparently, Trump Jr. was unimpressed with the contents of the plastic folder and asked Veselnitskaya whether she had more concrete evidence. The plastic folder, therefore, may have just contained propaganda. Whether Trump Jr. took the plastic folder with him or whether he left it behind in the conference room is unclear. What was clear, however, was the intent. According to the AP report, “Veselnitskaya presented the contents of the documents to Trump Jr. and suggested that making the information public could help the campaign.” And receiving this plastic folder, assuming it really happened, may have implicated the participants in espionage.

The word “treason” has been thrown around to describe this and other putative efforts by members of the Trump campaign to court and be courted by the Russian government during the 2016 election. For reasons that have been described here, here, and here, nothing anyone in the Trump campaign did or conceivably could have done would meet the constitutional definition of treason. (Even being a vice presidential candidate does not make you a constitutional law scholar.)

In the alternative, Bob Bauer and Jed Shugerman have written superb technical posts explaining how Trump Jr., Jared Kusher, Trump’s senior advisor and son-in-law, and Paul Manafort, Trump’s campaign manager at the time, likely violated campaign finance laws. Helen Klein Murillo and Susan Hennessey made a very clear case for their liability as accomplices under the Computer Fraud and Abuse Act. On Saturday, Seth Abramson wrote a Twitter thread arguing that they violated 18 U.S.C. § 3, as accessories after the fact to any number of crimes the Russians may have been committing. And Kushner could also have violated 18 U.S.C. § 1001 by withholding information about this meeting on his security clearance forms.

But all of these legal theories, even if they prove to have merit, seem to miss the intuitive point that those who levy treason allegations seem to be making. When considered in terms of what the Russia scandal might actually involve – Americans courting an adversarial foreign power for the purpose of influencing the outcome of a presidential election – these crimes, though felonies, seem like technicalities. What makes things like the meeting at Trump Tower troubling is not simply that members of the president’s inner circle violated federal laws in order to compromise the integrity of the electoral process. It is that they appear to have compromised the integrity of the electoral process in a way that was disloyal to the country.

They made themselves fellow travelers of a foreign power that is openly hostile to America and its liberal values, even if not an enemy of the United States in the technical, constitutional sense.

At the risk of resurrecting yet another obscure part of the U.S. code, I would argue that the national security concerns that prompt right-thinking people to reach for the word treason in these circumstances have a place. But that place is not the crime of treason. It is the admittedly problematic Espionage Act of 1917. And as innocuous as it may have seemed in the moment, Veselnitskaya’s plastic folder may have led Trump Jr. across a serious legal line.

We tend now to think of espionage as synonymous with spying, as providing information to a foreign power or leaking state secrets. But espionage, as it was understood in the Espionage Act, is a broader and a more reciprocal legal concept. The Congress enacting the Espionage Act was as, if not more, concerned with U.S. nationals acting covertly to facilitate a foreign power’s infiltration of the political system. And a key provision of that aspect of the law remains codified at 18 U.S.C. § 957.

Section 957 provides:

Whoever, in aid of any foreign government, knowingly and willfully possesses or controls any property or papers used or designed or intended for use in violating any penal statute, or any of the rights or obligations of the United States under any treaty or the law of nations, shall be fined under this title or imprisoned not more than ten years, or both.

Given its overriding use in combination with the Foreign Agents Registration Act, § 957 was included among the other “foreign relations” crimes, such as the newly famous Logan Act, when it was incorporated into the U.S. Code in 1948. Since that time, there appears to have been only one contested prosecution under § 957. In 1989, an American supporter of the Provisional Irish Republican Army was charged, among other things, with developing bomb-making plans. As a “body of insurgents within a country with which the United States is at peace,” the Provisional Irish Republican Army constituted a “foreign government” for the purposes of Title 18 and the bomb-maker was convicted. Alan Dershowitz brought an unsuccessful appeal against his conviction under § 957 on First Amendment grounds, but the First Circuit rejected the contention that the law was unconstitutionally overbroad.

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In thinking about what transpired in Trump Tower, § 957 would seem to fit the known or reasonably suspected facts. Trump Jr.’s emails confirm that Natalia Veselnitskaya was known to be an agent of the Russian government. It appears based on the current reporting that neither Veselnitskaya nor any of her confederates were registered under the Foreign Agents Registration Act, which in the context of their explicit efforts to lobby against the Magnitsky Act, may have violated various penal statutes. And if Trump Jr. or one of the other American participants in the meeting took the final and crucial step of actually taking the plastic folder, he would have taken possession and control of papers that were the ostensible quid pro quo for his willingness to be lobbied about the Magnitsky Act. Even if the documents inside the plastic folder contained nothing but unsubstantiated rumors and even if he then threw it in the trash after he left the meeting, he still might have violated the Espionage Act.