Donald Trump Junior’s willingness to receive campaign opposition aid from the Russian government is “absolutely shocking,” former federal prosecutors say. By itself, it’s likely a step short of criminal behavior.
But the emails could help Robert Mueller – the special counsel running the Trump/Russia probe – make the case to a grand jury that the Trump campaign intended to collude with a foreign power. And that could be especially potent if evidence emerges showing other campaign officials actively asking for help from Russians.
In other words, it’s far from clear that these emails by themselves are evidence of a crime. But they could be a key part of the larger picture of how Trump campaign officials dealt with Russia.
“The emails are absolutely shocking but they don’t in themselves prove [Donald Trump Junior] committed a crime,” said Renato Mariotti, a former federal prosecutor in Chicago.
Seasoned criminal defense and national security lawyers who spoke with The Daily Beast had a variety of viewpoints on whether or not Donald Junior’s emails mean he broke the law. A major complication is that evidence of violations of campaign law aren’t necessarily evidence of a crime – because the relevant laws place significant stress on intentional violations. Added to the unprecedented situation of a successful political campaign eagerly sidling up to a hostile foreign power, and the legal murk intensifies.
But while Don Junior may have an exculpation that can stand up in court, his campaign colleagues might not.
Naveed Jamali, a former FBI double agent who worked on Russian counterintelligence and wrote the book “How to Catch a Russian Spy,” argues that the Russian government clearly wanted to use Don Junior for their own purposes, and that he probably didn’t know what was going on – which is exactly what the Russians would have wanted.
“Collusion really minimizes what this was,” he told The Daily Beast. “This was not a two-way street. It was the Russians attempting to recruit Americans to use at their direction.”
Minutes before the publication of another damaging New York Times story about his June 9 2016 meeting with Russian attorney Natalia Veselnitskaya, the president’s eldest son tweeted screencaps of his emails with pop-music attorney Rob Goldstone, who arranged the meeting on behalf of his clients, a family with close ties to Vladimir Putin.
Goldstone explicitly refers to Veselnitskaya as a “Russian government attorney,” despite both her denials and Donald Trump Junior’s statement in the tweet that Veselnitskaya was “not a government official.”
The emails show Goldstone floating the meeting to the younger Trump by referencing the “crown prosecutor of Russia,” seemingly a reference to the country’s prosecutor-general, telling Goldstone client Aras Agalarov that the official was prepared to “provide the Trump campaign with some official documents and information that would incriminate Hillary.”
Goldstone contextualized the offer as “part of Russia and its government’s support for Mr. Trump.”
Trump Junior replied: “If it’s what you say I love it.” He roped in campaign chief Paul Manafort and his brother-in-law, now-senior White House adviser Jared Kushner.
The legal liability of a seasoned political operative and a senior White House adviser may be different than Trump Junior’s.
“The fact that he says ‘I love it,’ the fact that he knows the origin is Russia and that he brings along two very high level people — Manafort and Kushner — goes a long way to understand [he recognized ] the significance of the information,” said Barbara McQuade, who, until Trump took office, was the U.S. attorney for Eastern Michigan.
The fact that Donald Junior knowingly had these conversations with foreign nationals may be the biggest legal problem for him, according to a longtime DC campaign finance lawyer. Federal campaign finance law is very clear that American campaigns cannot ask for campaign contributions – including money, goods, or services – from foreigners, whether or not those foreigners are affiliated with foreign governments. The lawyer said the statute’s language means campaigns can’t ask for opposition research from foreigners.
Accordingly, an option for Mueller would be to argue before a grand jury that the proffer represented a “contribution” from foreign nationals under campaign-finance law. But while it might satisfy the statutory requirement that they contained a “thing of value,” Mariotti said, they’re not the bright-line violation that, say, foreign money would represent.
McQuade, however, thinks the emails indicate that the younger Trump could be guilty of a so-called “Klein conspiracy,” which makes it a crime to “defraud the United States.”
“It doesn’t have to any monetary value,” McQuade said. “It could be defrauding the U.S. government in honest elections.”
But then comes another twist. The younger Trump would have to “knowingly and wilfully violate” a known legal duty, and “his lawyer will say he had no idea” the intended transaction – which Donald Trump Junior thus far denies actually occurred – was illegal. In this case, Mariotti said, ignorance of the law can be an excuse.
Scott Greenfield, a longtime New York criminal defense attorney, agreed that Donald Junior’s lack of knowledge might be his saving grace.
“I think he’s just a dopey kid thrilled at the prospect of having some kind of ammo to shoot at the enemy,” Greenfield said.
“You don’t have knowing intent to violate any laws here,” he said of the emails. “You have ignorance, and ignorance gives you incredible latitude that knowledge prevents.”
But that’s a harder defense for someone like Manafort, who ran campaigns before ever working for Trump.
“It would be easier to Mueller to prove that Manafort knew he was violating the law by soliciting a contribution from a foreign national, because Manafort’s experience on political campaigns likely exposed him to the details of campaign finance law,” Mariotti noted.
If Mueller opts not to target Donald Trump Junior specifically, Mariotti said, the emails aid the ex-FBI director in assembling a portrait of a campaign that was willing to receive material from a hostile foreign power – especially if further revelations emerge that show purloined material exchanging hands from Russia to Team Trump.
With Manafort and Kushner in the meetings as well, it “shows the intent more clearly” to do political business with the Russian government “and that may be relevant later on. Donald Trump Junior and others are eager to get information from the Russian government on Hillary Clinton,” he said.
In the emails, Goldstone says he anticipates Veselnitskaya trafficking “obviously very high-level and sensitive information” in her meeting with Trump Junior, Manafort, and Kushner. But it’s not clear what that was; and so far, the younger Trump has said Veselnitskaya didn’t have the goods, so they moved onto a discussion of sanctions under a U.S. anti-corruption law called the Magnitsky Act, which Putin has used as a lever to block American adoptions of Russian children.
The intended proffer, however, came more than six months after hacking teams used by Russian intelligence, colloquially known as Fancy Bear and Cozy Bear, infiltrated the servers of the Democratic National Committee. Nearly two months after the June meeting in Trump Tower, internal emails began spilling out onto the internet, thanks to what U.S. intelligence assesses as Russian government cutouts. If it emerges later that the Trump campaign received any purloined information, Mariotti said, then the legal jeopardy Trump Junior and his allies face ratchets up substantially.
Kushner could potentially be in trouble as well, though his legal team is much more experienced than Donald Junior’s and he hasn’t been shooting himself in the foot by making ill-advised public statements.
Kushner is a senior White House official. That position required him to list for the FBI his contacts with foreign governments. The Times reported Monday night that Kushner had recently “revised his foreign contact disclosure document to include” the June meeting – something a senator on the intelligence committee, Republican James Lankford of Oklahoma, referred to on Monday.
Mark Zaid, a national security lawyer who specializes in security clearances, told The Daily Beast that Kushner didn’t necessarily break any laws by neglecting to mention the Veselnitskaya meeting when he first filed his forms to get his clearance.
“I haven’t seen anything yet that would lead me to believe it was a reportable contact by law,” Zaid said. “The knowledge of this meeting raises significantly more questions that could lead down a path of legal jeopardy, but standing alone, for Kushner, I don’t see any specific crime committed.”
Zaid said Kushner would have needed to report the meeting with Veselnitskaya if he had reason to believe she was working for the Russian government when the meeting happened. Thus far, there isn’t evidence to definitively show that Kushner knew she was. But not everyone agrees that Kushner is in the clear.
“The purpose of the requirement for information on the security form is so the government can be aware of and examine the potential harm from your association with foreign nationals,” said Michael German, another former FBI agent. It’s one thing for someone “with dozens of routine contacts with foreigners” to forget to list one, German said, but quite another for someone to repeatedly forget to report their relatively rare contacts with a single foreign power, as Kushner has now forgotten twice.
Asked if Kushner needed to know Veselnitskaya was a Russian government operative before reporting his contact with her, German replied: “That would be a question for the jury.”
-- with additional reporting by Justin Miller