Many words describe Donald Trump Jr.’s June 2016 meeting with Russian lawyer Natalia Veselnitskaya.
Smart is not among them.
But after the torrent of claims that Moscow “meddled” in the 2016 presidential election, it is remarkable that when a Russian actually showed up to meet with Trump campaign officials, she did not interfere after all. Rather, Veselnitskaya allegedly spent 20 minutes seeking a softening of U.S. sanctions against Russia. Trump’s son-in-law, Jared Kushner, left after 10 minutes. Campaign manager Paul Manafort focused on his email. No one followed up.
It is a fair inference that Manafort and Kushner attended to prevent the meeting from becoming a political embarrassment. They failed.
In today’s white-hot partisan environment, it has escaped notice that it is not a crime to meet a Russian. Obviously, there are circumstances where it would be improper or even illegal for a political campaign official to conspire with a Russian, but the known facts of the June 2016 meeting do not come close. This conclusion should be revisited if it turns out that the campaign provided Veselnitskaya’s plane ticket or had other financial arrangements with her.
For now, two words describe the Trump Tower meeting: brain-dead. But dumb does not equal criminal. Criminalizing all dumb moves in political campaigns would effectively eviscerate the First Amendment.
Critics claim that Donald Jr.’s emails show “collusion” between the Trump campaign and the Russian government. But “collusion” is not itself a federal crime (except in antitrust law). Instead, the crime of “conspiracy” requires an agreement between a Trump campaign official and a Russian governmental official to commit a specific crime. Rabid anti-Trumpers think that crime might be hacking or false statements or even espionage, but alas: no evidence. Further investigation might discover such an agreement, but nothing public at this stage rises to the level of a crime.
Claims that the meeting might constitute treason or violate federal campaign law only reveal a desperate effort to overturn the results of the 2016 presidential election. This irresponsible thinking has not just held sway among the liberal commentariat, where one would expect it to flourish, but with otherwise respectable political leaders. Sen. Tim Kaine (D.-Va.) told reporters that “this is moving into perjury, false statements and even potentially treason.” He seems to have forgotten whatever he learned about the Constitution while attending Harvard Law School.
The Framers were so concerned about the potential misuse of treason trials by the federal government that they made it the only crime specifically defined in the Constitution’s text. Article III states: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Taking a meeting with a Russian lawyer, even if she might have ties to the Kremlin, simply does not amount to “levying War.”
Indeed, on this point Kaine forgets his own state’s history. In 1807, Virginia hosted the most important treason prosecution in American history, that against the Aaron Burr conspirators. In the Burr case, President Thomas Jefferson ordered his former vice president (who had earlier killed Alexander Hamilton in a duel) tried for attempting to raise a rebellion in the new Louisiana Purchase. Chief Justice John Marshall, who sat as the trial judge, found that the bar for “levying War” to be quite high - basically an overt act of force against the government.
Even if Donald Jr. did not actually commit a hostile act, some might argue that he gave “aid and comfort” to the enemy. Established judicial doctrine has long made clear that helping a foreign nation, alone, does not qualify as treason. A defendant can only provide aid and comfort to an enemy in the context of a war. Despite our problems with the regime of Vladimir Putin, we are currently at peace with Russia. Even during the start of the Cold War in the early 1950s, we did not prosecute the notorious Soviet spies Julius and Ethel Rosenberg for treason, but rather espionage, because there was no war with the USSR.
Former Democratic officials speculate that Donald Jr. may have violated federal campaign law, which prohibits candidates from soliciting contributions or “anything of value” from a foreigner. In 1996, for example, Bill Clinton fell into hot water when prosecutors and congressional investigators learned that wealthy Chinese nationals may have funneled money to his campaign. Trump critics suggest that damaging information on Hillary Clinton could qualify as something “of value,” equivalent to large sums of money.
But if information itself qualifies as an in-kind campaign contribution, it is not just foreigners who will be affected - though we could care less about the rights of Russians. This theory would allow the government to interfere with legitimate and legal (no matter how roughhouse) electioneering by Americans.
Federal election law, for example, places a cap on campaign contributions from Americans at $2,700 per candidate per campaign. Suppose, in 2020, a disgruntled White House official provides the Democratic presidential campaign with information damaging to President Trump. Will that whistle-blower have made an illegal in-kind contribution? Suppose a journalist warns the Democratic candidate of an approaching Trump line of attack - will the reporter have violated campaign contribution limits?
These activities, of course, should receive the protection of the First Amendment. No court has ever upheld the prosecution of an American for transferring information to a campaign. Prohibiting Americans from gathering and spreading information about candidates would strike a deadly blow not just to the free spirit of our election campaigns, but to the robustness of our democracy.
John Yoo is a law professor at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute and a former Bush Justice Department official. David Marston was a U.S. attorney in Philadelphia.