Donald Trump Jr.’s private exchanges with WikiLeaks on Twitter during the 2016 campaign raise a host of new questions about the Trump team’s communications with foreign entities before the election. But the messages alone don’t appear to cross any clear-cut legal lines.
“I certainly didn’t see anything that looks like a smoking gun in the descriptions that we were given,” Rick Hasen, a University of California, Irvine, law professor who specializes in election law, told me.
My colleague Julia Ioffe reported Monday that Trump Jr. exchanged multiple private messages on Twitter with the radical transparency organization before the election. In some cases, Trump Jr. appeared to act on requests from the group. In one instance, for example, he tweeted a link it had sent his way. A message posted by his father’s account soon after the group contacted Trump Jr. also mentioned WikiLeaks. The messaging, which WikiLeaks initiated during the election and continued as recently as July, was not previously known to the public.
The earliest known conversations came as WikiLeaks founder Julian Assange and his organization were under immense scrutiny for their role in disseminating stolen Democratic emails. U.S. intelligence agencies later concluded that Russian government hackers laundered the emails through Assange’s website to damage Hillary Clinton’s presidential bid and bolster Donald Trump’s chances.
Most of the public discussion about the Russia investigation centers on the question of collusion between Moscow and the Trump campaign to undermine Clinton. But “collusion” isn’t a specific crime under federal law. Instead, legal experts have questioned whether any Trump campaign officials may have violated a campaign-finance statute that bars foreigners from donating money or any other “thing of value” to a campaign. That same provision also forbids campaign officials from soliciting such a donation.
“If I’m a foreign citizen and I give a thousand dollars to the campaign, then that’s a thing of value,” Hasen explained. “If I provide a dossier, that also could be [a thing of value]. And so the question that came up during the last Don Jr. controversy was whether providing dirt on Hillary Clinton—opposition research—could be a thing of value for purposes of the statute.”
That debate first arose in July when The New York Times revealed that Trump Jr., his brother-in-law Jared Kushner, and then-campaign Chairman Paul Manafort met with Russian lawyer Natalia Veselnitskaya in Trump Tower in June 2016 after she promised “information helpful to the campaign” about Clinton. Trump Jr. denied any wrongdoing and said that Veselnitskaya, who has ties to the Kremlin, provided no such information to them.
The Twitter conversations made public so far don’t show deliberate solicitation of WikiLeaks’s help on the part of Trump Jr. The closest he came to such a request was on October 3, 2016, when he asked WikiLeaks, “What’s behind this Wednesday leak I keep reading about?” (Roger Stone, an occasional Trump adviser, had tweeted “Wednesday@HillaryClinton is done. #WikiLeaks.” the day before.) Indeed, it was WikiLeaks that solicited from Trump Jr. throughout the exchanges—asking for his father’s tax returns, highlighting links for Trump Jr. to tweet, and even suggesting that the elder Trump publicly float Assange as a possible Australian ambassador to the United States.
Even if the exchanges did show Trump Jr. soliciting damaging information from WikiLeaks, federal prosecutors could run into difficulty pursuing charges for violating foreign-spending rules. “Assange is or could be considered a journalist, and we might have different rules for foreign-news media,” Hasen explained. “Certainly that’s how domestic campaign-finance law works, where we treat media differently than others.” And while he believes that a “thing of value” under the statute can include opposition research or stolen emails, that view isn’t unanimous among legal experts. He cited arguments made in July by Eugene Volokh, a UCLA law professor, that such a broad interpretation of the term could run afoul of the First Amendment.
Trump Jr.’s messages also show WikiLeaks providing him with the login information of an anti-Trump website. “A PAC run anti-Trump site putintrump.org is about to launch,” the account wrote to Trump Jr. “The PAC is a recycled pro-Iraq war PAC. We have guessed the password. It is ‘putintrump.’ See ‘About’ for who is behind it. Any comments?” Trump Jr. replied that he would “ask around” about the website’s provenance.
But Trump Jr. doesn’t indicate whether he actually used the password. Orin Kerr, a George Washington University law professor who specializes in computer-crime law, said that doing so would violate the Computer Fraud and Abuse Act. “If anyone actually entered in the username and password or entered in the password to the website, that’s a federal crime,” he said. “And whoever would have passed on the email with the intent that someone else use it is committing a crime.”
Prosecutions under the CFAA are relatively uncommon. Kerr estimated that federal prosecutors use it to bring charges between 100 and 120 times a year. Using a stolen password to gain unauthorized access can be a felony if it’s used to further another crime, he added. But what matters under the statute is a potential defendant’s intent when accessing a computer system without permission.
“The criminal law is very focused not just on what somebody did, but on what they were thinking and what they wanted to achieve,” Kerr explained. “That could be established by the emails and messages associated with it from the context. You don’t need him saying, ‘I have an intent to further this.’ It could be, ‘Hey can somebody check into this?’ or ‘Can somebody try this out?’”
Even if the messages don’t directly show criminal behavior, Hasen said he found their contents troubling. On Election Night, when Clinton still seemed likely to prevail, WikiLeaks encouraged Trump Jr. to urge then-candidate Trump to cast doubt on the electoral outcome “if your father ‘loses.’” The elder Trump had spent the weeks before Election Day claiming without evidence that the vote was rigged, only to drop the allegations after he won. “We think it is much more interesting if he DOES NOT conceed [sic] and spends time CHALLENGING the media and other types of rigging that occurred—as he has implied that he might do,” WikiLeaks wrote. Trump Jr. did not respond.
“We were already worried that Trump wouldn’t concede if he lost and that this could undermine the legitimacy of our democracy and the electoral process, and here’s a foreign citizen egging him on,” Hasen said. “That’s very disturbing.”