It was left to his lawyer Jay Sekulow to try to clean up the mess. Addressing whether the meeting constituted a criminal violation, Sekulow told George Stephanopoulos on ABC’s “This Week” that “you have to look at what laws, rules, regulations, statutes are purportedly violated here.”
So let’s do that. Meeting with a foreign power to get assistance with a presidential campaign is not totally legal; special counsel Robert S. Mueller III almost certainly could indict Donald Trump Jr. today for what is publicly known about the meeting; and the president should be deeply concerned about his own liability.
Mueller’s February indictment of the Internet Research Agency, and associated Russian entities and individuals, charged a conspiracy to influence the election to damage Hillary Clinton, Sens. Ted Cruz and Marco Rubio, and support Bernie Sanders and Donald Trump — let’s call it an electioneering conspiracy. The indictment charged violations of 18 U.S. Code § 371 — conspiracy to commit an offense against, or to defraud United States.
Under the “defraud clause,” as precedent and the U.S. Attorneys’ Manual make clear, the statute criminalizes “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government,” even if the object of the conspiracy is not a criminal offense. According to Mueller’s indictment, the conspiracy sought to defraud the Federal Election Commission and the Department of Justice — the agencies charged with preventing foreign nationals from making contributions, donations or expenditures (which can include not just money, but any “thing of value”) that would influence U.S. elections.
Conspiracy law, it’s important to note, punishes the act of agreeing to a forbidden goal regardless of whether that goal is achieved. So long as the government can establish that targets agreed to pursue the conspiratorial objective, they may be prosecuted as co-conspirators. Conspirators need only agree to help bring about the object of a conspiracy even if they are not aware of all the details of the conspiracy itself. For example, in “chain-conspiracies” usually involving narcotics, lower-level buyers and sellers are included in larger distribution conspiracy so long as they have some understanding of the existence of the larger plot.
The Trump Tower meeting clearly fits established definitions of “conspiracy to defraud the United States.” In early June, Trump Jr. received an email explaining that a Russian government official wanted to provide his father’s campaign with incriminating documents and information about Clinton as part of “Russia and its government’s support for Mr. Trump.” Trump Jr. replied, “if it’s what you say I love it especially later in the summer.” The June 9 meeting was confirmed two days earlier, on June 7. That night, Trump announced that he would “give a major speech” in the next week to discuss “all of the things that have taken place with the Clintons.”
On the face of it, Trump Jr. was approached by a foreign government seeking to influence an American election. Trump Jr. welcomed the possibility of influence, and candidate Trump’s actions, while circumstantial, indicate that he intended to make use of that information. It is irrelevant, in conspiracy law, that Trump Jr. found the information ultimately worthless, or as Trump said, that “it went nowhere.”
Michael Cohen’s allegations last week must have deeply terrified the president and those looking out for his legal interests. Cohen, the president’s former lawyer and “fixer,” reportedly is willing to tell Mueller that he was in the room when Trump heard about and approved the June 9 meeting. That would potentially place the president at the center of the decision to join the electioneering conspiracy. Trump’s later documented effort to dictate a false statement about the meeting looks like an attempt to cover up his culpability. A prosecutor and jury are entitled to view a cover-up as evidence of participation in the conspiracy.
More than one year after telling the world that the June 2016 meeting was about adoptions, Trump and his eldest son stand stripped of their false cover. There is no more denying that the meeting sought to enlist the help of a hostile power to swing the election Trump’s way. The effort and the false statements about it were plainly deplorable. Whether they also were illegal turns on questions of law that Trump cannot obfuscate or control. They are what they are. Mueller already has laid the legal predicate for the Trumps’ guilt. Trump is at last playing in a legit game, and his hand is weak.
Harry Litman, a former deputy assistant attorney general, teaches constitutional law at UC San Diego. David Lieberman, a former Massachusetts assistant attorney general, is a lawyer with the Whistleblower Law Collaborative.