Was the Meeting Between Donald Trump Jr. and the Russian Lawyer Really “Treason” or the “Smoking Gun” of Collusion?

Richard Painter, an ethics lawyer under former President George W. Bush, has declared that the meeting of Donald Trump Jr., with a Russian lawyer who claimed to have compromising information on Hillary Clinton during the campaign, “borders on treason.” Others have said that the disclosure could be the long sought after “smoking gun” on collusion and evidence of criminal conduct.  I am afraid that I have to continue my record as something of a “buzz kill” on these stories.  There is not a clear criminal act in such a meeting based on the information that we have.  Moreover, it is not necessarily unprecedented.

Painter declared on MSNBC that

This was an effort to get opposition research on an opponent in an American political campaign from the Russians, who were known to be engaged in spying inside the United States. We do not get our opposition research from spies, we do not collaborate with Russian spies, unless we want to be accused of treason.  . . .  If this story is true, we’d have one of them if not both of them in custody by now, and we’d be asking them a lot of questions. This is unacceptable. This borders on treason, if it is not itself treason.

I have to respectfully disagree with Painter. I tend to view these things through the lens of a criminal defense attorney and I do not see how either Trump Jr. or Natalia Veselnitskaya could be put into “custody” for such a meeting.  There is no crime in listening to people who say that they have incriminating information on a political opponent, even a foreigner.  Article III defines treason as “levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.”  To say that this type of meeting even borders on treason is quite a departure from the language and cases governing that crime.

Moreover, it is hardly shocking to see a willingness to gather dirt during that election.  Hillary Clinton was repeatedly criticized for her close association with figures like David Brock who was denounced even by John Podesta as sleazy and disreputable.   There was also Sidney Blumenthal who was regularly denounced for spreading rumors and dirt against anyone threatening Clinton.

There are also the allegations surrounding who funded a former British spy to come up with the dossier against Trump, which is now viewed as discredited.

Once again, experts are pulling out the Logan Act to suggest a possible crime.  Norm Eisen, a former chief White House ethics attorney, referenced the law even though it has only been enforced once; and is widely viewed as unconstitutional, as we have previously discussed. Vermont Law Professor Jennifer Taub suggests that it could be charged as a conspiracy to defraud the United States.  So listening to someone who claims to have evidence that a federal crime by your competitors is now an effort to defraud under 18 U.S.C. 371? I am highly skeptical of the chances of such a claim and I have never seen the like of it.  

Others have suggested that he might be charged with “violating federal criminal statutes prohibiting solicitation or acceptance of anything of value from a foreign national.”  Well, business people accept things of value from foreign officials all the time. It is called transnational business. Presumably, this is meant to suggest a criminal contribution to a campaign from a foreign national — ironically the very allegation raised by the Russian lawyer against Clinton as the purpose of the meeting.

That allegation is rather hard to square with the fact that campaign officials and candidates speak to foreign leaders and sources all the time on issues.  If notice of a possible crime or information is now deemed as a thing of tangible value under federal campaign laws, the wide array of exchanges on behalf of campaigns would be implicated. Indeed, major free speech and association issues would be raised.  Once again, this is a matter that is worthy of investigation. However, these possible criminal charges are radically over-extended on the facts that we currently have.

None of this excuses the slime machine that runs 24/7 in Washington.  People in the Beltway regularly traffic in dirt — it is the currency of our time.  It has been for some time.  Indeed, the Federalists and Jeffersonians actively and openly sought scandalous material to use against each other.

Trump Jr. said in a statement to the paper on Sunday that he had met with Natalia Veselnitskaya at the request of an acquaintance and denied that he received any information on Clinton.

“After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton,” he said. “Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information.”

“It became clear to me that this was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting,” Trump Jr. said.

Donald Trump Jr. said that the Russian lawyer contacted the office shortly after his father clinched the Republican presidential nomination to share information damaging to Clinton:

I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign. I was not told her name prior to the meeting. I asked Jared and Paul to attend, but told them nothing of the substance.

We had a meeting in June 2016. After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton.

Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information.

Foreign funding of an election would be a federal crime.

Trump Jr.  said that Veselnitskaya soon changed the subject and began discussing the adoption of Russian children and moved the conversation towards the Magnitsky Act — a 2012 bill that blocks certain Russian officials’ entrance to the U.S. and their use of the U.S. banking system:

It became clear to me that this was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting. I interrupted and advised her that my father was not an elected official, but rather a private citizen, and that her comments and concerns were better addressed if and when he held public office. The meeting lasted approximately 20 to 30 minutes. As it ended, my acquaintance apologized for taking up our time. That was the end of it and there was no further contact or follow-up of any kind.

Quite frankly, most people in the Beltway look at that account and snicker that Trump Jr. was a fool to personally attend such a meeting.  Other campaigns would have used surrogates like Brock but they would have gotten the information.

The one area of legal concern raised by this account is again the failure of various Trump family members and associates from listing foreign contacts on federal forms, including the SF-86.  I have had to fill out that form regularly since the Reagan Administration and listed even brief meetings with foreign academics at conferences.  It is hard to see how such meetings would not be listed.

Unless there is more (and this is worthy of investigation), I see nothing close to treason or a crime in this account.  That obviously does not fit with the breathless accounts given the story but the criminal code is not a code of political etiquette.