Saturday, June 10, 2017


[Revised 6/13 and 6/19 with added discussions]
The country has been in a morass for a year because of the Russian interference in the 2016 election. 

The country is approaching a constitutional convulsion growing out of Russia.

Understanding can take months to develop.

Understanding can be gained early by a few.

Wider public understanding can be slow.

The below two part article published this month in the online forum Just Security helps immensely with understanding:
Campaign Finance Law: When “Collusion” with a Foreign Government Becomes a Crime 
 Campaign Finance Law: When “Collusion” Becomes a Crime: Part II
The article brings into focus that Federal election laws prohibit foreign nationals (which includes foreign governments) from making contributions or expenditures to influence U.S. elections.

The article also brings into focus that the law prohibits domestic persons from providing "substantial assistance" to foreign nationals (including foreign governments) who make contributions or expenditures to influence U.S. elections.

The article discusses whether, under these prohibitions, there is a case that Trump and the Trump campaign criminally violated the  law. The article, right at its outset, frames the matter this way:
Commentary on Russian intervention in the 2016 elections has included one confidently expressed and perhaps growing view: that there may be a scandal there, but no conceivable crime. It is claimed that the Trump campaign could wink and nod at Russian hacking, and derive the full benefit, but that without considerably more evidence of direct involvement, there is no role for criminal law enforcement. The matter is then left to Congress to consider whether new laws are needed, and the public, of course, will render its judgment in opinion polls and in elections still to come.
This view is flawed. It fails to consider the potential campaign finance violations, as suggested by the facts so far known, under existing law. These violations are criminally enforceable.
James Comey has now told the country that, as of the time of his firing, Trump was not under investigation by the FBI. [Edit 6/11: In a video clip on the TV this morning from the Comey testimony, I heard Comey refer to the FBI investigation as a counter-intelligence investigation. This muddies the water for me a little about "Trump not being under investigation."]

This needs to be explained.

It seems inconceivable that an FBI investigation could be going on relative to whether the Trump campaign violated the foregoing prohibitions of the Federal election law without Trump himself, and his role, being a subject of investigation.

If there is an investigation, maybe there is a technical explanation that allows the FBI to say Trump is not being investigated (such as it would be planned not to indict him and consider him only an "unindicted co-conspirator" if others are indicted).

If Trump is not a subject of investigation because there is no criminal investigation of possible violation of Federal election law, it would seem that it should be expressly explained to the country that the Department of Justice has concluded "there may be a scandal [under Federal election law], but no conceivable crime" and there is no investigation of a possible criminal violation of the Federal election law.

If that is the case then the Department of Justice should tell country so and that "[t]he matter is . . . left to Congress to consider whether new laws are needed, and the public, of course, will render its judgment in opinion polls and in elections still to come."

With the country verging on a constitutional convulsion about Russia, the foregoing needs to be explained to the public, and there needs to be complete clarity either that the Trump campaign is under criminal investigation for possible violation of the Federal election law, or not; and, if not, the public needs to look "to Congress to consider whether new laws are needed, and the public, of course, will render its judgment in opinion polls and in elections still to come."

It would further seem that this matter should be considered by every member of Congress, every member of Congress should try to find out what he or she can, and every member of Congress should inform his or her constituents to the best of his or her ability about the foregoing.

Update 6/13 Additional discussion

A. Is country in a bad political condition that should be improved?

The view of many is that the country's political situation and governance are in bad shape five months into the Trump administration. A main factor is that the country is mired in the Russia matter, the investigation seems it will go on for many months, and in the meantime it is impairing the country's governance.

Others may think there is nothing to worry about concerning the country's political condition.

Some members of Congress may go along with the latter view. These representatives who believe the country is not impaired politically, and no special attention is needed to improve the country's political condition, would do a good service by announcing these beliefs to their voters, and enable the voters to judge those beliefs for themselves and take the same into account in the next election.

On the other hand,  representatives in Congress who think the country is in a bad shape politically ought to say that to the voters, and those representatives should tell who or what they think is at fault for the country's poor political condition.

Some representatives may think that the reason for the country's bad political condition is all the fault of the other political party. Those representatives thinking this should announce that is what they think, all for the voters to judge for themselves and take it into account in the next election.

Representatives in Congress who think the country is in bad political shape but don't think it is all the other political party's fault should ask themselves what they can do to help the political condition of the country.

My original posting above indicates what I think representatives in Congress should do to improve things for the country in the Russia morass, and the purpose of this additional discussion is to say more.

B. Observations regarding Russia investigation

Here are some observations about the Russia mire from the American people's point of view that may be helpful.

National security is important to the American people, but the people don't have sophisticated understanding of dangers and risks to national security, and the people need and want to rely on their government and its security apparatus to assess risks and do the right things for the country.

If there is disagreement at the leadership level about what is right for the country on national security, the American people would want that disagreement to be bona fide and not be infected by partisan political motives. The people are not well qualified to figure out what is bona fide and what is politicized exaggeration or distortion.

Given the foregoing, it is highly objectionable for the American people if political agendas get played out in disagreements about what is right for national security.

Accordingly, it would be helpful if representatives in Congress would be attuned to whether they are acting out partisan agendas in how they participate in high profile discussion  about national security matters, and if they would try hard to keep that from happening on their part.

This leads to consideration of Russia, which has some strands that should be sorted out.

I don't think the American people are  bothered if an incoming administration seeks to initiate communications related to the foreign policies the new administration wants to pursue, subject to a couple of things.

With such communications, there can be considerations of national security.  As discussed above, if there are national security concerns, the people don't have the capability to appreciate the same, and the people need and want to rely on the government, the national security apparatus, and the incoming administration to work through the same in good faith for the benefit of the people. The people don't need and don't want investigations and hearings that get dragged on to serve political agendas and that keep partisan supporters in the grassroots agitated.

If there are genuine national security concerns in what has happened in transitioning to the Trump administration, mud has been piled on from both sides, which will draw out the investigations and hearings beyond what the people need or want and be detrimental to the country's governance.

The mud on the Democrats side is they are obsessed with finding collusion between Russia and the Trump campaign regarding Russia's interference in the election. Every meeting, telephone call, email or other communication between a Russian and anyone connected with the Trump campaign must be discovered and put under the microscope to find any indication of planning and coordination about how Russia was interfering in the election. This narrow focus is relentless and impairs willingness to accept that there could be other subjects of meetings, telephone calls, emails, and other communication that are not the Russian interference in the election. Many think Benghazi was a wasteful with hunt, and the Democrats search for collusion now is starting to look the same way.

Trump has piled on his own mud in at least two ways, and these help the Democrats to continue with their collusion obsession.

In the campaign Trump created mystery and suspicion because of his unwillingness to accept assessments of United States national security agencies about Russian interference in the election. This was greatly exacerbated by Trump's publicly asking Russia to interfere in the election. Following the election, President Trump is carrying this on in having no interest in Russian interference in U.S. elections. This mud piled on by Trump helps the Democrats in following their obsession to find collusion, although they are turning up nothing.

The second mud Trump has thrown on the investigation is Trump's having refused to deal adequately with his myriad conflicts of interest growing out of his worldwide business, and Trump's secrecy about the same. This is of legitimate concern for the American people. While the people may have deficient understanding about national security, they can understand that a President is supposed to have policies, make decisions and take actions that serve the country's interests and that are not influenced by how the President's business interests are affected. This applies particularly to Trump business dealings with Russia, and this "conflicts of interest" mud piled on by Trump provides the Democrats further ways to draw out the hearings and investigations as they pursue their obsession to find collusion between Russia and the Trump campaign regarding Russia's interference in the election.

The American people are being badly served by the combination of (i) the Democratic obsession to find collusion between Russia and the Trump campaign relating to Russia's interference in the election, (ii) the mystery and suspicion about Trump in the campaign refusing to accept the assessment of the national security agencies and further asking Russia to interfere, and President Trump's lack of interest in the Russia interference, and (iii) Trump's conflicts of interest and his secrecy about the same.

That combination now has the country mired in the Russia investigations and hearings that appear headed to go on for months if not years, and be detrimental to the country's governance.

A way to help get out of this mire is for both sides to make corrections. The Democrats should reel in their obsession to turn over every last rock to find collusion, in the face of no evidence having been found after six months of investigating. On the other side, the Republicans need to call out Trump for what he did in his campaign, his current lack of interest in Russia's interference, and the problems created by Trump's conflicts of interest.

A further thing for Democrats and Republicans to do is to divide the Russia matter into the two parts of (i) determining and combating the Russia interference and (ii) addressing what the Trump campaign did, and dealing with the two parts separately.

C. Combating Russian interference

Except for Trump's lack of interest, Republicans and Democrats should be able to agree that Russian interference in U.S. elections is a very bad thing and that the interference needs to be understood and steps need to be taken to try to prevent interference in the future. This is going to be a long term effort by the country, and how successful the country is going to be in preventing the interference in the future is uncertain. This aspect of the Russia problem can be separated out as not being a contributory factor to the country's political condition being bad. If Trump, will not take an interest in combating Russian interference, the Republicans need to tell Trump he is wrong in not taking an interest and he needs to take an interest.

D. Collusion; "substantial assistance" to Russia

Regarding the Russia interference in the 2016 election, the core of what is impairing the country politically is the question of whether Russia and the Trump campaign colluded.

The way collusion is being discussed in the news is whether there were meetings or communications between Russians and Trump campaign officials in which there was express coordinated planning and implementing of the Russian interference to help the Trump campaign (the term "private collusion" shall be used to refer to this kind of coordinating).

An alternative to "private collusion" is that Russia initiated its interference in the election on its own with the purpose of trying to hurt Hillary Clinton and help Donald Trump, and the Trump campaign became aware of that interference and acted unilaterally to take advantage of the same, including by Trump publicly encouraging Russia to interfere. This scenario possibly makes for criminal violation of the Federal election laws by reason of Trump giving "substantial assistance" to Russia as discussed in the original posting above and the articles that are cited.

At this juncture there is no publicly reported evidence of "private collusion" (i.e., meetings and communications between Russians and Trump campaign officials in which there was express coordinated planning and implementing of the Russian interference to help the Trump campaign). The investigation of whether there was "private collusion" could go on for a long time, thee is a good chance nothing will turn up, and in the meantime the investigation is a debilitating distraction which impairs the country's governance.

Regarding the "substantial assistance" criminal law scenario, a couple of things are immediate for both Republican and Democratic members of Congress.

Both Republicans and Democrats should consider whether the existing Federal election law prohibition against "substantial assistance" to a foreign government making contributions or expenditures to influence a U.S. election covers the situation of Trump asking Russia to interfere and the Trump campaign doing other things to try to take advantage of the Russia interference but in which there are not communications and meetings with the Russians to plan and coordinate the Russian interference.

Both Republicans and Democrats should try to learn whether the Department of Justice has expressly considered whether there is a possible criminal case to be pursued where there is no "private collusion" and, if the DOJ has not considered the same, to proceed to consider the possibility and inform Congress about what it concludes.

If the DOJ concludes that there is no criminal case without "private collusion," Democrats and Republicans need to decide whether a new law is needed to prevent candidates in future elections from soliciting foreign governments to interfere in U.S. elections the way Trump and the Trump campaign did in the 2016 election.

Edit 6/19
The way it is going, our country cannot afford waiting on the DOJ and the investigations.
On the  one hand, the President is tweeting:
On the other hand, The New York Times is putting out the below.

Russia took direct aim at American democracy in 2016. President Trump couldn’t care less.

Every indication is that the only response the President will make about the Russia interference and its risk to the country is to send more "witch hunt" tweets. This situation is becoming intolerable for the American people. With the President refusing to address the matter,  our whole Congress, Republicans and Democrats included, need to address the matter and speak to the country about it in some way. A good way would be for McConnell, Schumer, Ryan and Pelosi to agree on a joint statement to be issued by them to the American people setting out what they believe Congress should do.

See also Financial crimes and Bob Bauer (the latter memorializing my effort to obtain the views of, among others, Jonathan Turley, Jeffrey Toobin, Alan Dershowitz, Morning Joe, Andrew C. McCarthy, Laurence Tribe, and Larry Lessig).

Edit 6/25
Yesterday, Andrew C. McCarthy published the below article "The Antithesis of Obstruction".

Edit 6/28
Alabama Today tweeted the below Associated Press story "Retracted CNN story a boon for president at war with media."

Donald Trump says "hoax" and he did nothing wrong. The Democrats give no sign of letting up to turn over every rock in their quest to find collusion.

The two sides are evading. The Federal election law makes it a crime to give "substantial assistance" to a foreign government that makes contributions or expenditures to influence an election.

Donald Trump  needs to acknowledge to the American people that Federal election law has the foregoing criminal law provision and needs to state to the American people it is the opinion of him and his lawyers that he did not violate the law. As President, he should request the Department of Justice to express its views about the law.

Congress needs to take up the matter and render its view to the American people about whether Donald Trump violated the law and whether any new laws are needed.

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