Dershowitz: Did Donald Trump Jr. commit a crime or merely political sin? It depends

Special Counsel Robert Mueller will surely be looking into the meeting between Donald Trump, Jr., and a Russian lawyer named Natalia Veselnitskaya.  Part of the meeting was also attended by Jared Kushner, the president's son-in-law, and Paul Manafort, who at the time was running Trump’s campaign.  It now seems clear from the emails that the Trump people went to the meeting expecting to be given dirt on Hillary Clinton from the Russian government.  The question remains, if this is all true, is it criminal?

The first issue that must be addressed by Mueller is whether any existing criminal statutes would be violated by collusion between a campaign and a foreign government, if such collusion were to be proved? Unless there is a clear violation of an existing criminal statute, there would be no crime.

Obviously if anyone conspired in advance with another to commit a crime – such as hacking the DNC – that would be criminal. But merely seeking to obtain the work product of a prior hack would be no more criminal than a newspaper publishing the work product of thefts such as the Pentagon Papers and the material stolen by Snowden and Manning.   Moreover, the emails sent to Trump Jr. say that the dirt peddled by Veselnitskaya came from “official documents.”  No mention is made of hacking or other illegal activities. So it is unlikely that attendance at the meeting violated any criminal statute.

Perhaps mere collusion by a campaign with a foreign government should be made a crime, so as to prevent future contamination of our elections. But it is not currently a crime.

Whether or not such collusion, if it occurred, is a crime, it is clear that the American people have the right to know whether any sort of collusion –legal or illegal – took place.  And, if so, what was its nature.

The Mueller investigation is limited to possible criminal activity.  Probing the moral, political or other non-criminal implications of collusion with, or interference by, Russia is beyond the jurisdiction of the special counsel.  It is the role of Congress, not the Criminal Division of the Justice Department, to make changes in existing laws.  Perhaps mere collusion by a campaign with a foreign government should be made a crime, so as to prevent future contamination of our elections.  But it is not currently a crime. 

Nor will it be easy to draft a criminal statute prohibiting a campaign from using material provided by a foreign power, without trenching on the constitutional rights of candidates.  But this is all up to Congress and the courts, not the special counsel, with his limited jurisdiction.

That is why the entire issue of alleged collusion with, and interference by, the Russians should be investigated openly by an independent nonpartisan commission, rather than by a prosecutor behind the closed doors of a grand jury. 

The American people need to know precisely what the Russians tried to do and did – and what, if anything, the Trump campaign knew and did. These issues go beyond a cops-and-robber whodunit. They involve the very essence of our democracy.

The end result of a secret grand jury investigation will be an up or down determination whether to indict or not to indict.  If there are no indictments, that will end the matter. The special counsel may issue a report summarizing the results of his investigation, but many experts believe that such reports are improper, since the subjects of the investigation do not have the right to present exculpatory evidence to the grand jury, which typically hears only one side of the case. Beyond any report, there will also be selective leaks, such as the many that have already occurred.  Leaks, too, tend to be one-sided and agenda driven.

A public non-partisan commission investigation, or even one conducted by partisans in Congress, would be open for the most part.  They would hear all sides of the story, and the public would be able to judge for itself whether there was improper collusion.  A commission or Congressional committee could also recommend changes in the law for the future.

The American people need to know precisely what the Russians tried to do and did – and what, if anything, the Trump campaign knew and did.  These issues go beyond a cops-and-robber whodunit. They involve the very essence of our democracy.

Alan M. Dershowitz is Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of, "Trumped Up! How Criminalization of Political Differences Endangers Democracy," which is now available. Follow Alan Dershowitz on Twitter: @AlanDersh Facebook: @AlanMDershowitz.