Erasmus, the noted classical scholar, described lawyers this way: A most learned species of profoundly ignorant men.
He had a point. How else do you explain the wild pronouncements of lawyers like Harvard Law Professor Laurence Tribe, former White House ethics lawyer Richard Painter and Senator Tim Kaine, D-Virginia? Each have suggested Donald Trump Jr. committed treason by meeting with a Russian lawyer, Natalia Veselnitskaya.
All three lawyers earned their degrees at Harvard or Yale. Yet, they appear to have slept through their class on constitutional law.
Treason is defined in Article 3 of the Constitution and codified in 18 USC 2381: “Whoever, owing allegiance to the United States, either levies war against them or adheres to their enemies, giving them aid and comfort with the U.S. or elsewhere.”
Meeting with a Russian lawyer is not treason. The U.S. is not at war with Russia. Even if the president’s son received information from the Russian government or otherwise collaborated with foreign officials, it constitutes neither waging war against the U.S. nor aiding the enemy.
If it were otherwise, a myriad of Republican and Democratic Senators who admit meeting with the Russian Ambassador, Sergey Kislyak, might be somehow guilty of treason. In these meetings, information is surely exchanged. No one has ever suggested it rises to the level of criminality. Indeed, it is what diplomats and foreign officials do. It is what our own officials do in foreign lands.
Collusion has nothing to do with elections and political campaigns. Which renders special counsel Robert Mueller’s investigation meaningless. He is tasked with finding a crime that does not exist in the law. It is a legal impossibility.
Even if the Trump campaign had acted on information provided by the Russian lawyer, it would still not constitute treason. Even conspiring to subvert the government does not rise to the level of treason. Under our Constitution, Americans are permitted to speak against the government, undermine political opponents, support harmful policies or even place the interests of another nation ahead of those of the U.S.
You would think these lawyers, however misguided by their political prejudices, would nevertheless comprehend such a fundamental principle of constitutional and statutory law. Clearly, they do not.
Each harbor their own biases which have blinded them to the law. Tribe and Painter sued President Trump within days of his taking office. They claim his many business dealings violate the Emoluments Clause of the Constitution. Their case is without merit.
Kaine might be described as a “sore loser,” having lost the presidential election as Hillary Clinton’s vice presidential running mate.
Before perpetuating the treason canard, these lawyers should reread the famous 1953 case of Julius and Ethel Rosenberg. They were convicted of espionage after providing nuclear secrets to the Soviet Union. They were not charged with treason because the U.S. was not “at war” with the Soviets.
So let’s dispense with all this silliness over treason.
Collusion? No Such Thing
Now, amid the cacophony of claims that the Trump campaign committed the criminal offense of “collusion” with the Russians, no one has managed to point to a statute that makes colluding with a foreign government in a political campaign a crime. Why? Because it cannot be found anywhere in America’s criminal codes.
As explained in an earlier column, “collusion” is a loaded word conjuring all manner of incriminating behavior. Yet, it exists only in anti-trust laws which forbid price fixing and other anti-competitive activities under Section 1 of the Sherman Antitrust Act.
Collusion has nothing whatsoever to do with elections and political campaigns. Of course, that inconvenient fact has not stopped politicians, pundits and journalists from either misunderstanding the concept and/or misconstruing its application to the Trump-Russia hysteria.
It also renders special counsel Robert Mueller’s investigation meaningless. He is tasked with finding a crime that does not exist in the law. It is a legal impossibility.
The only conceivable crime tangentially related to collusion is found at 18 USC 371, entitled “Conspiracy to Defraud the United States.” It makes it a felony for two or more persons to enter into an agreement to interfere or obstruct a lawful function of the government. An election would be a lawful government function. However, it must be done by “deceitful or dishonest means.”
So let’s suppose, for the sake of argument, that the Russian lawyer provided information damaging to the Clinton campaign and the Trump campaign then acted on the material by disseminating it to the public. How is that deceitful or dishonest? It is not.
But this is not what happened, as best we know. According to Trump Jr., the lawyer offered no information at all. Indeed, the lawyer insists the subject of the campaign was never broached.
Let’s play another “what if.” What if the Russian lawyer handed Trump Jr. a file and said, “here is information which we hacked from the DNC and the Clinton campaign?” If the president’s son accepted the file, then he could be accused of knowingly receiving stolen property. But again, there is no evidence this ever happened.
It is worth remembering that the hacked information was not made public by Wikileaks until after the June 9th meeting. Months later, in October, the U.S. government officially acknowledged Russian interference in the election.
There is one final law to be considered. Under the Federal Election Campaign Act, soliciting and/or receiving foreign donations is prohibited (11 CFR 110.20). This includes “money or other thing of value.” Is information, by itself, a “thing of value?” One could attempt to make that argument, but it has never been interpreted that way. To the contrary, the law specifically states that "services" are not contributions and that foreign nationals are permitted to volunteer their services to U.S. political campaigns.
Moreover, campaign election laws are rarely the subject of criminal prosecutions. The vast majority of cases are civil violations resulting in fines. But again, both Trump Jr. and the Russian lawyer agree that no information related to the presidential campaign was conveyed. If true, this statute is inapplicable.
As much as President Trump’s opponents may wish it to be, it is not a crime to meet with a Russian. Nor is it a crime to meet with a Russian lawyer or government official. Even gathering information from a foreign source is permissible. Unwise and ill-advised, yes. Illegal, no.
Until such time as Congress decides to pass a bill – and the president signs it into law – criminalizing “collusion” with a foreign government in an American political campaign … no law has been broken here.