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November 23rd, 2017

Insight

Was Donald Trump Jr.'s Russian Meeting a Criminal Act?

Judge Andrew P. Napolitano

By Judge Andrew P. Napolitano

Published July 20, 2017

Was Donald Trump Jr.'s Russian Meeting a Criminal Act?

Last week, The New York Times revealed that in June 2016, Donald Trump Jr., the president's eldest son; Jared Kushner, the president's son-in-law and chief confidant; Paul Manafort, Trump's then-campaign chief executive; and others met secretly at Trump Tower with a former Russian prosecutor and a former Soviet counterintelligence agent to discuss what negative (most likely computer-generated) information the Russians might have to offer them about Hillary Clinton.

Within days of the meeting, the elder Trump announced publicly that he would soon release a litany of reasons why Clinton was unqualified to be president and that they would include new allegations about Clinton and Russia. The new allegations did not come.

When the Times reporters asked the younger Trump about the meeting last week, he initially claimed it concerned Americans adopting Russian babies. Then he claimed it was about Russian concerns over American economic sanctions on select Russians. When the reporters told him they had his emails, which tell a different story, he released his emails to the public so as to beat the Times to the punch.

Then, media hell broke loose about whether the Trump campaign was working with the Russians to acquire information about Clinton, and, particularly, whether any Trump campaign officials engaged in criminal behavior.

Here is the backstory:

No seasoned campaign official would have met with foreign people, particularly former government officials, in order to discuss any materials they might have about an opponent, because the acquisition of materials from a foreign person or government is illegal under federal law. The inquiry that Donald Jr. received from a friend who served as an intermediary between the Trump campaign and the Russians should have been run past the campaign's legal counsel, who no doubt would have told his colleagues to stay clear of such a proposed meeting, and then reported the overture to the FBI.

Donald Jr. claims that the meeting lasted 20 to 30 minutes and produced nothing of value or of interest to the campaign. Yet the emails paint a picture of him as hungry for dirt on Hillary ("if it's what you say I love it," he wrote), and ready, willing and able to meet with the Russians to see what they had.

Was Donald Jr.'s meeting a criminal act?

Standing alone, the meeting itself was probably not a criminal act. But the varying versions of it that have been given by the president and his son (Were you lying then, or are you lying now?); and the failure of Kushner, who has a national security clearance, to advise the FBI of it in his application for the security clearance (Did you not know they were Russians?); and the presence of an ex-Soviet counterintelligence agent (Did you not know he had been a spy?) at the meeting all give rise to the level of articulable suspicion, which is the constitutional minimum standard to commence a criminal investigation.

In this case — where the Department of Justice has named a special counsel to examine the role of Russian agents in the 2016 presidential election — the articulable suspicion standard will surely trigger the special counsel's involvement. Stated differently, while the Trump Tower meeting alone was probably not a criminal act because speech unaccompanied by behavior or agreement is absolutely protected by the First Amendment, its existence alone is enough to cause the special counsel to commence a criminal investigation of the participants to determine whether a crime was committed then and there, or elsewhere.

I have been listening for more than a week to many of my respected colleagues asking, "Where is the crime?" and I understand their inquiry. Yet the crimes for which the special counsel is looking rarely fit into a neat package. Unlike a bank robber who uses a gun to get cash from a bank teller — a crime that has a beginning and an end — white-collar crime often involves nuance and mental state and the behavior of third parties sometimes unknown to the original participants.

Thus, an FBI agent or Department of Justice lawyer might compare the Trump Tower meeting to a thief displaying stolen jewelry to a group of potential purchasers, who initially rejected the jewelry. And thus, the feds might want to know whether others decided to view the jewelry, or whether there was a meeting of some of the minds at Trump Tower but perhaps Donald Jr. was excluded from such an assembly. As well, they might inquire as to whether this was an attempt to use foreign people to gather data about Clinton.

We know it is a felony for a campaign official to accept something of value from a foreign national or a foreign government; and we know that because campaigns legally pay folks to do opposition research, that research is a thing of value. It is a felony for a campaign official to conspire to acquire a thing of value from a foreign national, even if the thing of value never arrives. It is also a felony for a campaign official to take a material step in furtherance of acquiring a thing of value from a foreign national, even if the thing of value never comes. And it is a felony for anyone without a search warrant to facilitate computer hacking for any purpose.

All this brings us back to Donald Jr.'s meeting. Was it a crime? We will need to await the outcome of the FBI's investigation and the DOJ's presentations to a grand jury. But we do know that the harm to the Trump presidency, much of it caused by those close to the president and the president himself, continues its dark march. Where will it end?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

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