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Damaging Information

By: John C. Eastman
July 21, 2017

Washington has been in full-blown scandal mode ever since Donald Trump Jr.—the president’s son—released a set of emails indicating he had taken a meeting with Natalia Veselnitskaya, a Russian lawyer claiming to have “damaging information” about then-candidate Trump’s campaign opponent, Hillary Clinton. Trump Jr. has been accused of everything from violating federal campaign finance laws to espionage and even treason. Seriously?

Let’s start with the most laughably erroneous claim, that of “treason.” Sen. Tim Kaine, the losing Democrat candidate for vice president in the 2016 election, stated following the email disclosure that “this is moving into perjury, false statements, and even potentially treason." Seth Moulton, a Democrat member of Congress from Massachusetts, stated in a tweet: “If this isn’t treasonous, I’m not sure what is.” New York Post Washington Bureau Chief Gabby Morrongoiello claimed in a tweet that former Watergate prosecutor Nick Akerman told her “there’s no question this is treason.” And Richard Painter, the chief ethics lawyer in the Bush White House who reportedly was a supporter of Hillary Clinton’s in the 2016 race, claims that the alleged effort to get opposition research on a political opponent from the Russians, if true, “borders on treason, if it is not itself treason.”

Most of these folks are lawyers (and even Moulton, the non-lawyer, is a Harvard graduate), but they apparently missed the discussion in Constitutional Law 101 about the meaning of “treason,” which is the only crime actually defined in the Constitution. “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Even had Trump Jr. accepted “damaging information” about Hillary Clinton from the Russian government itself, and even if that somehow could be viewed as giving “aid and comfort” to Russia, Russia is not legally an enemy of the United States. Heck, it wasn’t even legally an enemy of the United States in some of the tensest years of the “Cold War” in the late 1940s and 1950s. The Rosenbergs were convicted and executed for espionage after passing atomic bomb technology to the Russians; they were not charged with treason, because Russia was not at the time legally an “enemy” of the United States. As for the other part of the treason definition—that of “levying war” against the United States—some wags have claimed that Russia’s alleged hack of the Democrat National Committee was a “cyberattack” and therefore an act of war against the United States and her democratic institutions. Even if the word “war” could be stretched that far, a meeting to discuss the receipt of “damaging information,” or even the actual receipt of such information, would not qualify as “levying war.” These people need a reality check.

But what of the other legal accusations? The Espionage Act, 18 U.S.C. Sections 793 et seq., prohibits the disclosure of information about U.S. national defenses that would be injurious to the United States or of benefit to foreign governments, not the receipt of information from a foreign government. There is pretty solid evidence that at least one of those provisions, Section 798, has been violated, however. That section prohibits the knowing and willful transmission of classified information about U.S. intelligence-gathering capabilities, but it is not Donald Trump Jr. who should be concerned about that statute. Rather, the legal jeopardy exists for those who leaked information about our electronic surveillance of Russian officials; for the New York Times after its 2005 published expose of our intelligence-gathering capabilities; and for Hillary Clinton herself, for deliberately setting up an unsecure private server that she then used to illegally store and transmit classified information.

What, then, of the allegations that Trump Jr. violated campaign finance laws? Section 30121 of Title 52 makes it illegal for a “foreign national…to make a contribution or donation of money or other thing of valuein connection with a Federal…election” (emphasis added), and also makes it illegal for someone “to solicit, accept, or receive” such a contribution or donation. Even assuming that Trump Jr’s enthusiastic response (“If it's what you say I love it”) to the offer of “damaging information” about Hillary Clinton could qualify as a “solicitation”—itself quite a stretch—or that such information was actually provided to Trump Jr., contrary to explicit denials by both sides of attendees at the meeting, damaging information about one’s political opponent is not a “thing of value” as that phrase is used in the campaign finance laws.

First, the same phrase, “thing of value” (or more precisely, “anything of value”) is part of the definition of “contribution” that applies to all provisions of federal campaign finance law. If freely offered opposition research qualified as a “thing of value,” every candidate and campaign committee who receives such opposition research from anyone—and they all do—would be a serial violator of the campaign finance laws, because that routine provision of opposition research information would then have to be reported as an in-kind contribution on their federal campaign finance reports. As even a quick perusal of campaign finance reports available on the Federal Election Commission’s website will show, none of them do so.

Second, even if the phrase, “anything of value,” in the statutory definition of “contribution” could be interpreted broadly enough to include “damaging information” on one’s opponent, the definition of “contribution” also explicitly excludes “the value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee.” Voluntarily collecting information about a political opponent and offering it to the campaign is therefore not a “contribution,” even if it could be treated as a “thing of value.” Notably, this exception applies not just to U.S. citizens but to foreign nationals as well, who are allowed to volunteer on U.S. political campaigns.

Finally, the real legal problem here is not on the Trump side of the equation, but on the Clinton side. It is important to recall just what “damaging information about Hillary Clinton” the Russian temptress is alleged to have offered. According to Donald Trump Jr. himself, Veselnitskaya claimed “that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton.” That’s not just a “thing of value,” but an outright cash contribution, illegal under any interpretation of the campaign finance laws. Maybe Tim Keane should be more careful about throwing stones when he himself may live in a Russian-financed glass house.

John Eastman is the Henry Salvatori Professor of Law & Community Service, and former dean, at Chapman University’s Fowler School of Law, and a senior fellow with the Claremont Institute.

This piece originally appeared in the Los Angeles Daily Journal on July 19, 2017.