It’s a crime for a U.S. presidential campaign knowingly to receive—or even solicit—anything of value from any foreign entity. It’s a crime for anyone, campaign or not, to knowingly receive stolen data. In fact, receiving stolen data triggers a complex nexus of crimes, both state and federal. Donald Trump Jr., Jared Kushner, Paul Manafort, and other top Trump aides met with a lawyer who identified herself as an agent of the Russian government offering damaging information about Hillary Clinton.
Lying to Congress is a crime, albeit one seldom prosecuted. Trump Jr. was under oath when he testified to the Senate Judiciary Committee on September 17, 2017, that he did not tell his father about the Trump Tower meeting with the lawyer. “I wouldn’t have wasted his time with it,” he said. Should that testimony prove untrue, the younger Trump could also face perjury charges.
Money laundering is a crime. Tax evasion is a crime. Obstruction of justice is a crime. Lying to federal investigators is a crime.
It’s true, as Donald Trump’s lawyer Rudy Giuliani keeps insisting, that you will not find the word collusion in the federal criminal code. You will not find the word hacking there either. But that does not mean that hacking is legal, only that lawyers speak differently from other people.
The kernel of truth in the “collusion is not a crime” defense is this: If the Trump campaign avoided tripping over federal election law and computer fraud in the course of a hypothetical collaboration with the Russian GRU, then it is very possible it did not violate any criminal statutes. I wrote about such a possibility here last May. But the predicate for that possibility is that there be no direct contact between the Trump campaign and the Russian state, that any information sharing was channeled via WikiLeaks. Federal election law carves out exemptions for media organizations, and WikiLeaks has a colorable claim to be considered “media.”
But Special Counsel Robert Mueller’s second indictment of Russians claimed that voter analytic data was stolen by Russian hackers from Democratic servers. If those analytics were shared by the Russians with the Trump campaign, that would be a straightforward crime, just as much as the Watergate burglary of the Democratic National Committee in 1972.
The crucial context for assessing the claim that “collusion is not a crime” is the way the Trump-Russia story has emerged into the light, denial after denial collapsing into dust.
Trump, his campaign, and the White House have denied the campaign had Russia contacts. The campaign met with Russian agents.
They denied that the meeting discussed stolen email. The meeting discussed stolen email.
They denied Trump had knowledge of the meeting, either in advance or before it was exposed in the media. That denial is now disputed by Trump’s former lawyer Michael Cohen. Giuliani, Trump’s current personal attorney, gave a bewildering series of interviews this week in which he first referred to a planning meeting two days before the Russia meeting attended by Trump Jr., Kushner, and Manafort, and then insisted he had actually meant to deny that such a meeting had ever taken place.
They denied that the Russian intervention was intended to help elect Trump. At the Helsinki summit of the two leaders, Vladimir Putin said, plainly, that he had wished to see Trump elected.
Only this year, and only thanks to the Mueller investigation, have Americans begun to learn the full industrial scale of the Russian intrusion into the 2016 election. Only last month, and again only thanks to the Mueller investigation, was it confirmed that the hackers of the Democratic Party were indeed agents of the Russian state—a truth that Trump still will not unequivocally accept.
How much still remains to learn?
Yet there is one way in which the “collusion is not a crime” talking point actually directs attention in the right direction. The Trump presidency’s connections to Russia are a national-security issue first, a criminal-justice issue only second.
Donald Trump owes his presidency at least in considerable part to the illegal assistance of the Russian state: hacking, data theft, prohibited election advertising. This compromised president has in office launched himself against U.S. alliances and trade arrangements built by administrations of both parties over the past three-quarters of a century. The president describes the European Union as a “foe,” quarrels with Canada and Germany, and enters into agreements with Putin that he seems not to have shared even with his own secretary of state and national-security adviser. He blabs vital secrets to the Russian foreign minister, resists holding Russia to account for nerve-agent attacks on British soil, and refuses to implement sanctions voted almost unanimously by Congress. Meanwhile, the single data point that supposedly proves how tough he is on Russia—the provision of lethal aid to Ukraine—may actually prove something very different. Ukraine halted its cooperation with the Mueller probe ahead of the sale, to “avoid irritating the top American officials.”
“Collusion is not a crime” in the same way that a counter-intelligence investigation is not a criminal prosecution. Aspects of collusion may be criminal, but collusion itself is above all a threat to national security: the installation of a president beholden to some greater or lesser degree to a hostile foreign power.
The United States is a highly legalistic society. Public ethics debates are often reduced to technical legal arguments about the meanings of statutes. But in Trump-Russia, the most urgent concerns before the country are not prosecutable offenses but loyalty risks. During the Northern Ireland troubles of the 1980s, British police used to distinguish between those they ironically called “decent ordinary criminals” and IRA terrorists. It was—or should have been—obvious to anyone paying attention on voting day 2016 that Donald Trump was not an honest businessman. What has come further and further into the light since Election Day is something much more dangerous even than dishonesty.