Scandalous Beyond a Reasonable Doubt

In debating whether collusion is a crime, Donald Trump and Rudy Giuliani are successfully changing the subject from political misconduct to legalistic parsing.

Through a series of confusing and often contradictory statements over the past three days, President Donald Trump and his lawyer Rudy Giuliani have kept to one consistent theme: Collusion with a foreign power is not a crime. As the president crisply put it Tuesday morning:

Collusion is not a crime, but that doesn’t matter because there was No Collusion (except by Crooked Hillary and the Democrats)!

— Donald J. Trump (@realDonaldTrump) July 31, 2018

On a superficial level, this argument is flawed. As Giuliani acknowledged, in one of several moments of excessive candor on Monday, it’s a version of the classic hack defense lawyer’s argument: “My client didn’t do it, and even if he did it, it’s not a crime.”

Yet despite its facial weaknesses, the Trump team’s lawyerly parsing is part of a broader and highly successful effort to launder a long catalog of political and personal misconduct into a dry legal dispute. Instead of defending a series of plainly outrageous acts, Trump’s aides would rather force critics to prove specific statutory violations beyond a reasonable doubt. The fact that Giuliani and Trump have been able to draw their critics into a debate about whether collusion is a crime demonstrates how well the strategy is working.

Consider the facts that are public—avoiding the need to speculate about what Special Counsel Robert Mueller or any other investigator knows privately. During the campaign, Trump called for Russia to hack and release emails from his political adversary, the former secretary of state. (The candidate later tried to pass this off as a joke.) Late in the election, Trump authorized a six-figure payment to help ensure the silence of a Playboy model with whom he allegedly had an affair. He also later reimbursed his fixer Michael Cohen for another six-figure payment to another woman with whom he allegedly had an affair.

Once in office, Trump tried to intercede with the FBI director to get his national-security adviser off the hook for lying to federal agents. When that didn’t work, he fired the FBI director, offered a pretextual excuse, and then acknowledged soon afterward that he’d fired the director because he was upset about the investigation into his campaign’s ties to Russia. Later, he attempted to fire the special counsel appointed to take over the Russia probe.

During the campaign, several of his top lieutenants, including his son, his son-in-law, and his campaign chairman met with a Russian who they believed would deliver damaging information about Hillary Clinton; they were told this was part of Kremlin support for Trump’s candidacy. Trump, his son, and his son-in-law all say that the president was not aware of the meeting until July 2017, though Cohen disputes that. In any case, the president later personally dictated a false statement about that meeting for the press, attempting to hide the truth about it.

These are only the most glaring examples; there are scads of smaller or less fleshed-out threads, too. In general, the administration has become a haven for crooks and liars.

Each of these examples, in its own right, deserves to be a huge political scandal. As Alisyn Camerota put it to Giuliani during a CNN interview Monday, “Isn’t all of this unbecoming for a president of the United States?”

The answer is “Yes.” But Giuliani couldn’t even muster a “No,” offering a tepid “I don’t know” before quickly turning the subject back to legal matters. On points of law, Giuliani may or may not win cleanly, but he is able to at least raise questions and deflect from unacceptable political behaviors.

Trump and his lawyers have an unusual accomplice in this effort to turn a political scandal into a legal case: the president’s critics. Correctly sensing that there is no appetite among congressional Republicans to hold Trump accountable for his personal and political misconduct, Trump’s critics have put their faith in the legal system, transforming Mueller into a mythical savior who, they pray, will deliver the country from Trump through a careful, methodical legal investigation.

In doing so, they are setting themselves up for disappointment. My colleague David Frum warned in May 2017, when Mueller was first appointed, about the weaknesses of the sort of probe he had been appointed to lead. “A special prosecutor could wrap the investigation of the Trump-Russia matter in secrecy for months and years—and ultimately fail to answer any of the important questions demanding answers,” Frum wrote. “A special prosecutor is the most likely to disappear down rabbit holes” and the least likely to “answer the questions that needed to be answered.”

Events since then have vindicated Frum’s concerns. Although Mueller is moving faster than most similar investigators have, that hasn’t kept Republicans from insisting that he’s dragging his feet and taking too long. As I have written previously, Trump’s claims that the Mueller probe is a “witch hunt” are ridiculous, given the many indictments and several guilty pleas that he has already produced. If this is a witch hunt, Mueller has stumbled on a thriving coven.

Yet it is also true that most of what the special counsel has produced is tangential to the central misconduct outlined above. Michael Flynn and George Papadopoulos have pleaded guilty to lying about their contacts with Russians, not to untoward contacts per se. Mueller has charged a clutch of Russians for various cybercrimes, but no Americans. Or consider this week’s marquee trial: Paul Manafort was Trump’s campaign chair, but he is charged with financial crimes that allegedly occurred outside the auspices of the campaign; the one exception is that he was allegedly given loans by a banker who expected he would default, but who wanted a Trump campaign job.

This is, in part, how major conspiracy investigations play out: Prosecutors start from the margins and work inward. Perhaps Mueller will eventually produce powerful new evidence that Trump obstructed justice beyond what is already known—which, once again, seems politically incriminating at face value, regardless of the legal stakes. Or perhaps Mueller will uncover hard, incontrovertible evidence of criminal conspiracy between the Trump campaign and the Russian government.

But it’s also possible that if Mueller brings back enough evidence to charge Trump or others with crimes, they will be underwhelming or technical offenses, like campaign-finance violations or failures to disclose certain acts. Crimes are crimes, but these are not the sorts of charges that would be likely to topple a president.

Even if Mueller does come back with evidence of major crimes, then what? He has reportedly told the White House he’ll abide by Justice Department guidance that says a sitting president can’t be charged with crimes. That means the fate of the probe will come back to Congress after all.

In this light, it’s easy to see why Giuliani and Trump would rather debate whether collusion is a crime. They might lose some of the daily volleys—Giuliani looked confused and hapless Monday—but they’re still playing on the field they want. At the same time, they are working to undermine the idea of the rule of law, in case they can’t win on the merits.

This is not a novel tactic for a beleaguered president to pursue. When Bill Clinton’s affair with Monica Lewinsky was revealed, many of his critics believed he should resign. Instead, Clinton refused to step down and forced a legal resolution, moving the battle to more favorable terrain. He and his allies had already spent years in a lawyerly battle with Independent Counsel Ken Starr. Clinton’s equivocation about what constituted sex was rightfully ridiculed, but it helped keep the focus on the legal wrangling rather than on the broader moral principle.

Then came the impeachment process. Clinton remains deeply scarred by that experience, as my colleague Russell Berman reported in June. But the fact is, he benefited from a debate that was not about the propriety of a sexual relationship with a subordinate and was instead about whether he perjured himself and obstructed justice, and whether those offenses were serious enough to warrant removal from office. The Senate decided they were not, and Clinton’s approval soared.

In light of Giuliani’s argument that collusion is not a crime, observers from Fox News’s Bret Baier to Lawfare’s Susan Hennessey suggest that the press should internalize his critique, and quit referring to “collusion.” They could, for example, refer to criminal conspiracy, an actual crime. There are a few problems with this, though. For one thing, collusion is so firmly entrenched in the vocabulary now that it can’t be exorcised. For another, there is copious evidence that points to collusion—the generic concept—whereas no one has actually been charged with criminal conspiracy.

Moreover, accepting the need to designate a criminal statute cedes the ground to Giuliani and Trump, granting them the privilege of framing the matter as purely legal rather than political. The utility of collusion is its versatility: It encompasses crimes like conspiracy, but it also takes in misconduct that might not fit the definition of any particular statute but has historically been deemed unacceptable for the nation’s political leaders.

That’s the debate that the president would prefer not to have. His strategy of legalizing the fight is not without risks. Mueller could produce incontrovertible evidence of serious crimes, which would box Trump in. Or Democrats could gain control in Congress, allowing them to shift the debate back to politics by attempting impeachment or censure. Turning the fight into a legal one is a short-term, improvisational tactic—the kind of thing you try when you don’t have many options. But so far, it seems to be working out swimmingly for Trump.