The growing importance of the judicial branch as the scandal deepens
The internet blew up this week with questions and answers about whether or not collusion is a chargeable crime, and if Donald Trump, Jr. is at criminal risk. The general consensus of independent media is that conspiracy, not collusion, is the criminal act at hand, and ultimately the courts may decide, leaving open how the administration may attack the judicial system over the next few months.
The question gained critical relevance as Fox News pundits – privately-owned but U.S. equivalent of state-sponsored Russian RTV – claimed that even if there was collusion between the Trump campaign and the Russian hackers, there has been no crime in any legal sense.
Almost every legal expert disagrees: There are a number of laws that appear to have been broken, especially if you consider the criminal term “conspiracy” instead of the business term “collusion.” The latter was probably originally used to ‘soften’ the allegation, as ‘conspiracies’ in plain English use often refer to 911 Truthers and martians held captive in Area 51.
Legally, conspiracy to aid and abet a foreign country in commission of a crime, is the correct term.
And since any criminal charges need to be brought by someone, federal prosecutors as well as judges at every level will determine, ultimately, which law to use and if it will be enforced.
In reality, criminality depends both on the law, federal prosecutors taking up the case, and the judges who will decide whether or not to hear appeals, with the final arbitrator being the Supreme Court of the United States.
This is why autocrats in every country must stack the courts in a drive for total power unchecked by pesky criminal laws. The recent examples are numerous.
Would-be autocrats always try to seize control of the judiciary
Venezuela’s President Maduro-appointed court simply disbanded the parliament when it failed to do his bidding, unleashing the current protests that have landed the country in a civil war against the government.
Turkey’s president Erdogan simply added more justices – and fired thousands at lower judicial levels – until he was fully in charge. The result was last week’s march for “justice” by two million Turks from Ankara to Istanbul. Unfortunately, probably too late for an entire generation.
In Russia, the court is appointed by the party, controlled by the Putin. The Court’s independence has been fully neutered for more than a decade. That last real challenge, a powerful federal prosecutor was looking into the Yeltsyn embezzlement scandal, was squenched by Putin himself, then head of the SFB (formerly KGB), who released a grainy tape of a man he claimed was the prosecutor in a hotel room with two prostitutes. After Yelstyn’s resigned, and made him president, Putin passed laws making it impossible to accuse a past or current president of corruption, freeing himself from the judicial oversight forever.
In Poland, too, the Court was the first victim of the President Duda, who won the battle by refusing last year to swear in a number of judges appointed by the previous government – then appointing five new judges of his own. Finally, his legislators passed decrees limiting the authority of the judicial branch, with no checks or balances.
In the United States, the federal D.A.’s are already political appointees, and Trump has fired a large swath of them, politically in the normal range.
Trump also appointed a Supreme Court Judge in a nomination hijacked from the prior administration, but the battle for an independent judiciary will certainly be more of a fair fight than in other countries.
Everyone is relearning – and re-examining – the rules
A glitch in the system, for the Trump administration, is that a president cannot fire federal judges. There are, however, 104 federal judges that can be appointed, shaping the make up of the courts at the mid-tier levels. These may the judges who will hear appeals on key issues, such as whether or not states have to turn their voter logs over to the Vice President.
It only takes one federal prosecutor to bring a federal case with national implications, as the hindrance of the travel bans has shown, but the judges ultimately rule how far these cases will be taken, and ultimately, how the consititution is applied.
There is nothing stopping the president from appointing five more Supreme Court judges if Congress agrees to change the number, and Senate approves the nominations. It’s been tried before, by Roosevelt only to fail in 1937, but that doesn’t mean that it would fail today. The number of Supreme Court judges is not specified in the constitution, and the ability of the opposing party to filibuster has already been broken.
This could be a last ditch effort for the Trump administration, once the special investigation outlines all of the laws that have been broken. It seems clear that a variety have, starting with Kushner’s perjury on his security clearance forms. We just don’t know which legal transgression, if any, will be prosecuted, who will do it, and when.
“Not guilty” according to Fox will not work
Here is the counter-argument that no laws were broken, made by pundit Geraldo Rivera on Sean Hannity’s Fox News show:
“If the Russian KGB chief is talking to Paul Manafort and the chief says, ‘You know, I’ve got this dirt here that says Hillary Clinton was this or that,’ and Paul Manafort says, ‘Next Wednesday, why don’t you release that, that’d be great for us.’ That’s not — I don’t know that that’s a crime at all. What’s the crime?”
While Fox News is right that there is no specific ‘collusion law’ outside of those which prevent businesses from price fixing, there are a number of other criminal laws that have already been violated.
An illegal conspiracy is merely intent to aid an illegal act, whether or not the act even happens or succeeds. You can be arrested for conspiracy to commit murder or hack a website if you never did it. In other words, there is no need to prove that a conspiracy between the campaign and the Russian government ever actually drew more votes for Trump, although it’s clear that the release of hacked emails did have some impact.
“Conspiracy to” can be combined number of possible illegal acts: Foreign tampering in U.S. elections and violation of general campaign finance laws as well as hacking.
The independent fact-checking site Pundit Fact points out there are four laws that may have been broken: First, “a foreign national spending money to influence a federal election can be a crime.” According to a 2011 U.S. District Court ruling based on the 2002 law, Russian efforts to shape the election via a “donation” of information can be construed as an expenditure, or “contribution” to the campaign.
BusinessInsider also points out the Logan Act, forbids dealings by private individuals with foreign governments involved in disputes with the US, as Russia has been, the Stored Communications Act, which creates Fourth Amendment-like privacy protections for email and other digital communications; and the Espionage Act.
Finally, of course there is simple perjury, ie political officials denying under oath to Congress, and leaving out relevant information on security clearance forms. Kushner is guilty of the latter, two times over, as he was in the meeting with Donald, Jr., and still did not include this meeting in his ‘updated’ security clearance from.
The password to your c-panel please
What prosecutors may be waiting for is not a case, but the case, after Special Prosecutor Mueller’s investigation surfaces all the facts and makes a recommendation. Comey already showed the country that not every federal case where law violation is found is prosecuted or prosecutable.
The perfect case would include evidence of assistance, one level up from “intent to help” a foreign government in an illegal act. The latter – intent – is essentially already clear, from Donald Jr’s email, ‘I love it’ reaction to the idea of Russia’s government spilling dirt on Clinton to him in an effort to influence the election in Trump’s favour. The hacking only makes it more illegal and the appearance of quid pro quo is “a smoking cannon” as a former Watergate prosecutor put it.
But if investigations prove that Trump’s campaign actively aided Russia by, for example, supplying information on timing of the releases of hacked emails, or a ‘quid pro quo’ agreement of election help in return for relieving sanctions on individuals, or support for Ukraine, that would create the perfect case. The fact the Putin knows this would give him the ability to blackmail the president at will, by for example, suggesting a cyber security alliance. The password to your c-panel please!
Media insiders point out that Donald, Jr’s email remark that dirt on Hillary would be especially appreciated “later in the summer,” is very, very close to this type of prosecutable communication. It may be time to subpoena somebody else’s private email server.
A Republican congress will certainly protect the president from impeachment, at least until 2018.
But if the Congress turns Democratic, and Trump loses in 2020, it may be a democratic president who pardons the disgraced ex-president in an effort to heal the country.
If not, the courts may decide.