Legal Creep and Moral Fortitude (Part 4)

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More Legal Issues

Bob Bauer is the Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. Bauer clarifies what is meant by offering “substantial assistance”:

The relevant regulation suggests that something more is required: at least “substantial assistance” to the foreign spender in providing this “thing of value.” Does a presidential campaign render this substantial assistance to a foreign national engaged in influencing an election by endorsing the specific activity and confirming its strategic utility? When the Federal Election Commission (FEC) promulgated this ban on “substantial assistance,” it said little about its scope. It did make clear that the term was to be broadly construed. It offered the concrete example of a U.S. citizen acting as a “conduit or intermediary” for foreign spending, but noted that this was provided as only one example. It expressly left open other possibilities.

The President and others associated with the campaign made no bones about the value to them of the purloined email communications. The President told a rally of supporters he “loved” Wikileaks and read from the hacked communication to support his attack on his opponent for “a degree of corruption at the highest levels of our government like nothing we have ever seen as a country before.” He drew on the emails in the debates with Secretary Clinton. Notably, when he was asked during the debates to acknowledge the Russian program of interference and given the opportunity to openly oppose the actions, he wouldn’t do so. He also mentioned Wikileaks 124 times in the last month of the campaign. The Russians could only have been strengthened in the conviction that their efforts were welcome and had value. That covers the evidence in plain sight.

Of course, investigators will examine whether there were Trump campaign communications or private assurances to foreign nationals—including Russians and associates of Wikileaks acting as their “agents”—to encourage them or help coordinate the dissemination of these materials. Coordination at this level could well trigger the application of other provisions of the rules directed at the political campaign’s acceptance or receipt of the Russian assistance, or even its direct solicitation of it. But the “substantial assistance” prong would cover the more indirect of the Trump campaign activities—including public statements—that were conducted at more of a distance, and yet still intended to signal the Russians that help was needed and of “value.”

Bauer’s insights don’t end there. He argues that Trump Jr. may be legally liable under ordinary “aiding and abetting” principles of criminal law:

It may be easier to appreciate the case to the contrary–that liability with the requisite intent could be imposed for these actions–by considering how the case could also be brought under ordinary “aiding and abetting” principles of the criminal law.

It is well understood that established “aiding and abetting” principles have wide, elastic application. The abettor is not required, of course, to have been “in on it” from the beginning. In Learned Hand’s classic formulation in United States v. Peoni, the law requires only “that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” The courts have defined in various terms this association, but what is required is “some affirmative conduct designed to aid in the success of a venture with knowledge that [the]actions would assist the perpetrator, the principal of the crime.” United States v. Cowart, 595 F.2d 1023, 1031(1979).

Note that the assistance constituting aiding and abetting does not have to be substantial. The accomplice liability provision of the federal campaign finance law, focused on “substantial assistance,” is, in that sense, stricter. ,So federal prosecutors proceeding on an “aiding and abetting” theory may have the latitude to reach a broader range of Trump campaign conduct in support of the Russian program.

It would not be the first time that Prosecutors would have enforced campaign finance law with an “aiding and abetting” charge. And they have evidence in the Trump/Russia case with which to work.

The campaign was fully aware of the Russian source of the stolen material and of the Putin regime purpose to intervene in an election. The hackers did not steal into the Podesta account for their private consumption and edification; they put the stuff out with fanfare, with the intention of generating sensational disclosures that would have the most impact possible on the presidential campaign. Understanding the foreign national aim, the campaign welcomed the intrusion and did what it could to advance its objectives. The national party over the course of the month of October issued multiple releases highlighting whatever it judged politically useful in the content of the Wikileaks disclosures. The President himself, who had openly invited the Russian hacking and declared that he “loved “ Wikileaks, cited this material in the closing weeks. His confidante Roger Stone has made various and inconsistent statements about whether he had advance knowledge of the Wikileaks document releases, and there remains an open question of what he knew and how he came to know it; but he certainly amplified the disclosures by promoting them in advance and afterwards.

The possibility of legal action against senior members of the Trump administration is steadily creeping forward.

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