How Badly Could Trump Have Behaved without Committing a Crime?

We now know that Russian operatives made multiple contacts with the Trump campaign, offering aid. Not surprisingly, the investigators were unable to determine precisely what aid was offered at each meeting. It does appear that at least some of the aid offered were offers to assist the campaign by committing unambiguous crimes, like hacking into computer systems, which the Mueller report concludes that the Russian government ultimately committed, and others were offers to provide material aid that arguably violates campaign finance laws. (It is a thorny legal question whether any assistance of value by foreign nationals or a foreign government violates American campaign finance laws, even when the assistance could arguably be classed as speech, and a thorny factual question whether the Russians offered “mere” speech or material aid in disseminating speech, but these questions are of no importance to my basic point here so I will leave them aside.)

Mark G. Kelman
Mark G. Kelman, Vice Dean and James C. Gaither Professor of Law

We also know that no one in the Trump campaign ever reported any of these offers of help to American law enforcement officials because they were happy to receive the aid. So let’s assume, to put a spin on the point more generous than the report itself justifies, not only that we could not establish or prove that the President and his advisors did not actively agree with the Russians to violate laws but that they really never did actively conspire. And, let’s set aside the fact that Don Jr. was apparently not charged simply because he did not know that his conduct was illegal, though the report seems, by negative implication, to find that it was illegal.

Would Trump’s failure to report give rise to criminal liability? Almost certainly not. Consider the following analogy. Some nefarious guy tells his neighbor that he is going to steal a whole bunch of beautiful, valuable sculptures and artifacts and display them on his property. Doing so will enhance the value of the neighbor’s property a good deal since this neighbor’s home will now look out on the fabulous art. But the neighbor certainly has no legal duty to try to stop the theft or to report the planned theft to the authorities. Moreover, the neighbor is almost surely not guilty of conspiring with the nefarious guy under anything but the most aggressive prosecutorial interpretations of what it means to enter into a tacit agreement, interpretations that would be particularly aggressive to assert in the context of the politically divisive controversy over the 2016 election.

Still, if you are running for President, and some folks tell you that they are planning not simply to commit a crime, but to commit a crime that undermines the integrity of an American election, it is an egregiously bad thing not to try to do what one can to stop that crime from occurring, whether or not you are criminally liable if you stay silent. It is especially troubling if – like the hypothetical neighbor who is happy to have his house go up in value because of the crime he is hiding – the reason you don’t report the crime is that it is in your interest that the crime occur.

I have no idea whether Russian interference in the campaign played any causal role at all in the President’s election victory, let alone a significant one (although the President himself seems mindlessly obsessed with the unwarranted idea that it would undermine the legitimacy of his election to acknowledge that he received aid he ought not to have received). But we do know that the acts the Russians took were intended to help, and that the Trump campaign surely welcomed them.

There are innumerable signs that Trump has immeasurably debased our political culture, but the fact that even the more openly anti-Trump media outlets (like the New York Times, right after the Barr letter) seemed to think that what we now know to be the irresponsibly misleading Barr version of the report was not merely a political win for President Spin-master, but affirmed his deeper innocence is one of the most disturbing signs of all. Even setting aside the fact that the report on the whole supports the claim that Trump obstructed justice – whether out of fear that his campaign would be found to have colluded tacitly with the Russians; fear that in the course of any full investigation into his connections with Russia, evidence of other financial crimes would be exposed; or even fear of political or personal embarrassment (one needn’t cover up crimes to be guilty of obstructing justice) – the idea that it is not a horrific scandal to have buried offers of illegal aid is an idea that would have deeply shocked us until this president immunized us to shock.