Now that Trump’s former National Security Advisor Michael Flynn has pleaded guilty to lying to the FBI about his contacts with Russia, it is impossible for the administration to claim that no collusion took place during the election campaign last year.
Instead, the President’s lawyers have pivoted to a new argument: that collusion isn’t illegal anyway.
Jeffrey Toobin, a former federal prosecutor and senior CNN legal analyst, has published an article in this week’s The New Yorker magazine that demolishes this new angle of Trump’s defense by pointing out the numerous ways that the President is still under serious legal jeopardy.
According to the article, President Trump’s defense attorney, Jay Sekulow, is not worried about the likelihood of charges based on unlawful foreign campaign contributions or about accusations of aiding and abetting the Russian hacking of the Democratic National Committee and John Podesta.
“I’m not concerned about these bizarre theories,” Sekulow said. “There is no basis for saying, under the law or the facts, that any of this behavior during the campaign was criminal.”
While Sekulow can claim that he’s not losing sleep over these charges, others think he should be tossing and turning all night long.
“Foreigners can’t contribute to federal, state, or local campaigns, and that doesn’t just cover cash contributions,” said Kathleen Clark, a law professor at St. Louis’ Washington University. “According to the statute, if a campaign solicits a foreigner to give a ‘thing of value’ to a political campaign, that would be illegal as well.”
There is also the 1986 Computer Fraud and Abuse Act to contend with, which could be a major stumbling block if it can be proven that the Trump campaign coordinated with Russia to instigate the hacking, although Trump publically asking Russia to obtain Hillary Clinton’s missing email while he was on the stump makes it clear that he personally encouraged illegal behavior.
“If there is an agreement to commit hacking, it doesn’t matter if the people in the Trump campaign didn’t do the actual hacking—it just matters that they knew someone else would do it. There just needs to be an agreement that one or more will do it. They just need to have encouraged the hacking,” said Orin Kerr, a computer law expert and George Washington University Law School professor.
Toobin points out that the Supreme Court recently redefined the concept of aiding and abetting to include assistance after the crime has been committed in their ruling on Rosemond v. United States.
“Rosemond suggests that you can be held liable for the full crime even if you don’t know about every single element in advance. In this context, it may mean that the Trump-campaign officials can be prosecuted for aiding and abetting the hacking even though they did not know about it when it was done,” said former National Security Agency attorney Susan Hennessey. “By joining in the distribution of the hacked e-mails, they aided and abetted the commission of the crime.”
It is the obstruction of justice charges that will prove to be the most nettlesome for Trump, however, particularly in light of Trump’s tweet today commenting on the Flynn case.
If Trump indeed knew that Flynn was guilty when he fired FBI Director James Comey after having asked him to go easy on Flynn, then it will be difficult to interpret his actions towards Comey as anything other than obstruction of justice.
The other possible impeachment charge that should have Trump’s legal team wringing their hands concerns the provisions about bribery. As Toobin explains in his article:
“Trump’s financial affairs, especially with regard to Russia, remain opaque, but it’s possible to imagine how they might give rise to an impeachable offense. A straight payoff to Trump—cash in return for, say, a relaxation of the sanctions imposed by President Obama on the Putin regime—would certainly be impeachable even if it were not technically a crime under American law. Trump’s known business dealings suggest the possibility of a quid pro quo with Russian interests.”
“In 2015, for example, Trump signed a ‘letter of intent’ to build a tower in Moscow. Felix Sater, a Russian associate of Trump’s, wrote of the project, in an e-mail to Trump’s attorney Michael Cohen, ‘Our boy can become president of the USA and we can engineer it. . . . I will get all of Putins team to buy in on this, I will manage this process.’ That deal never came to fruition, but the intent expressed on both sides is deeply troubling.”
While Jay Sekulow and the rest of Trump’s defense team may be feigning a lack of concern over Flynn’s guilty plea, Toobin’s closer examination of the underlying potential charges against the President shows that, in reality, if they are not quaking in their boots, then they should be.