Saturday, December 30, 2017

Donald Trump says that even if he did collude with Russia, it is 'not a crime' | The Independent

Donald Trump says that even if he did collude with Russia, it is 'not a crime'

He did actually say that, and he is right in a very technical and legalistic sense, but I think Trump misunderstands what Alan Dershowitz was saying, which is that no pertinent law specifically forbids "collusion" because "collusion" is not a legal term except in antitrust law. Nobody on the Trump team is guilty of violating antitrust law (that I know of), so nobody will be charged with collusion. The general term "collusion," when used by people not in the legal profession, is just a sloppy shorthand term which we probably should not be using.

However, if a Trump associate did work with the Russians to influence the election, they could be charged with various actual crimes:

* Donald Jr may have violated election laws by taking that meeting to get dirt on Hillary Clinton.

* If anybody in the Trump campaign helped or advised Wikileaks or the Russians about where to hack useful data from Democrats or how to create an impact by releasing it, they would probably have violated the Computer Fraud and Abuse Act.

By the way, I think Trump also has in the back of his mind the idea that Flynn committed no crime when he contacted the Russians, but only when he lied about it. That is not technically correct, but it might as well be. I think it is unlikely that anybody on the Trump team will be charged with any crimes for their actions during the period between the election and the inauguration. While Flynn, for example, and anyone who approved his actions, probably violated the Logan Act in theory, nobody has ever been convicted of violating that in the 200+ years it has been on the books, and a President-elect gets even more latitude than the rest of us, since he is expected to be preparing himself to take over.

So let's drop the use of the word "collusion." It's legally meaningless in this context.

And while we're at it, let's also stop our ignorant use of the word "treason." No member of the Trump team has committed treason. Frankly, it is pretty much impossible to commit treason in peacetime. The Constitution addresses this specifically: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." In legal terms, the United States is not an enemy of Russia, but merely a geopolitical rival. Even Julius Rosenberg, the guy who wanted to give the atomic bomb to Stalin, could not be charged with treason because there was no war and Russia was not legally an "enemy." Rosenberg and his wife were tried and convicted of espionage, specifically section 2 of the Espionage Act of 1917, which prohibited transmitting or attempting to transmit to a foreign government information "relating to the national defense."

You MIGHT make a case for treason today if somebody revealed U.S. troop movements to ISIS, for example, but even that would require the prosecution to establish that ISIS can legally be called an enemy. At any rate, Russia is clearly NOT an enemy in any legal sense.


  1. I think you're being way too narrow.

    When it comes to the president, exact legal terms don't mean squat. Impeachment requires "high crimes and misdemeanors" which is about as vague as you can get. Best way to translate it is "whatever you can convince congress and the senate is worthy" which is a really big and weird picture to paint.

    Besides, the exact legal terms aren't as important for his underlings, either. As the saying goes, it's not the crime, it's the cover up. So far, that's where Mueller is focused, and it looks like he has a clear path to the end of that road. Trump clearly knew Flynn was lying, and said publicly that he wasn't. He then asked comey to make it go away. That sounds pretty solid right there: he knew of a crime, lied about it, then tried to use presidential power to make it vanish. Whether that crime was jaywalking or treason doesn't rant matter except in the eyes of the public.

    Which brings me to my last point: any prosecutor worth his weight in salt can find charges to fit obvious criminal behavior. I think you'll be hard pressed to find anyone who thinks working with Russia to swing a presidential election is anything less than criminal. If we don't have a literal crime on the books to cover it, it's only because we never imagined it happening. Prosecutors face that all the time and find ways to make vague charges stick. Criminal mischief or disorderly conduct, fraud, similar more generic charges that best fit the spirit of the crime. We just generally don't like people to get away with bad stuff because some lawmakers didn't put the exact wording down on paper. Russia is not a friend. They wanted to disrupt our election for negative reasons. Anyone who assisted them was at the very least willing to harm the nation for their own benefit. Only the most brainwashed of trump cultists would say that's okay.

    1. Not OK, but also not treason.

      While "collusion" is not a crime, the act of colluding with someone to commit a crime is. It's just not called collusion. It may break election laws, computer fraud laws, or the Logan Act, or it may be conspiracy to do so.

      As I see it Don, Jr is clearly guilty of conspiracy to break election laws because of that meeting he took to get dirt on Hillary from Russians. He has, in fact, already confessed to it!

      If Junior is guilty, then Senior is in big trouble if he actually dictated that statement intending to cover up the purpose of the meeting.

      But it makes absolutely no difference what Senior did, because he can't be removed from office without the vote of 67 senators. If he and Putin gave each other hand jobs, then shot their load on a picture of Jesus, and it was all captured on film, then maybe you'd get 60 senators to vote for removal.

      67 would be tougher. Maybe if Trump nuked an American city for their sanctuary laws.

  2. There is one scenario where I think Trump could be brought up on treason, and it's not as improbable as all that.

    Suppose Trump is about to be removed as President by impeachment, invocation of the 25th amendment, or someone finds out that the voting machines in 2016 really were hacked and the reported results were off by a few hundred thousand or million votes in Trump's favor, and Clinton would have won a fair count (which may no longer have a legal remedy but would cause mass riots and a revolution if that were the case).

    Suppose that instead of submitting to the will of Congress/the Cabinet/the Courts, Trump declares martial law and orders the military to arrest anyone who tries to remove him and rather than immediately telling him to fuck off, some portion of the military goes along with that, resulting in a shooting civil war.

    When the dust settled, and assuming there's still a country and Trump's side lost, he'd be pretty unambiguously guilty of treason by virtue having levied war on the United States.

    1. I should hope to whatever God may exist that such a thing never happens, although it is not too great a stretch to imagine The Donald as a tinpot Latin American strongman capable of such shenanigans.

  3. That's a lot of supposition. Given the recent "soft disclosure" by the DoD, I think it's more likely we'll be taken over by aliens than that scenario playing out.

    1. I didn't say it was probable, I just said it was less improbable than you'd think, and that it fits the definition of constitutional treason.