The Russia Hoax

by Gregg Jarrett

  Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties.66

  The FBI’s website offers the same legal interpretation.

  Some have suggested that this law applies only to cases involving discrimination against protected classes of people. This is not true. The Justice Department’s published opinion makes this clear:

  It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.67

  What constitutional rights were violated? As to Carter Page, his right to privacy, affirmed by the U.S. Supreme Court as a constitutional right, was abridged by the actions of the FBI and DOJ when they spied on him. Also, his Fourth Amendment right to be secure “against unreasonable searches and seizures” in the absence of “probable cause” was violated.

  Donald Trump’s constitutional right to run for the public office of president may also have been violated, since it appears that the real purpose of the FBI’s criminal investigation and surveillance of his former campaign advisor was to discover incriminating evidence against Trump to impede or disrupt his candidacy and, later, his presidency with the taint of Russian “collusion.”

  Upon conviction, “the offense is punishable by a range of imprisonment up to a life term . . . depending upon the circumstances of the crime, and the resulting injury, if any.”68

  A second potential crime is perjury as set forth in 18 U.S.C. 1621 and 1623.69 These two statutes criminalize lying under oath (or in any statement under penalty of perjury) in federal court if a person “willfully subscribes as true any material matter which he does not believe to be true.”70

  Concealing important information regarding the “dossier” from the FISA court, such as the political source of funding, the deceit of the document’s author, and the unverified nature of its contents would be obvious “material” matters. It appears to have been done “willfully” because the FBI and the DOJ were aware of this information but chose not to disclose it.

  Because FISA court proceedings are held in secret, and the warrant applications are not made public, it is unclear what oaths or affirmations were made in court. If it was similar to most court proceedings, the perjury standards applied. The penalty upon conviction is a fine or imprisonment up to five years, or both.

  The third criminal statute that may have been violated is often treated as an alternative to perjury called “false statements” (18 U.S.C. 1001).71 It makes it a crime to falsify or conceal a material fact or “make any materially false, fictitious, or fraudulent statement or representation.” The law also prohibits the same conduct in “any writing or document.”72 This is a broader statute than perjury because the false statement need not be under oath.

  Although this law explicitly excludes judicial proceedings, it does apply to actions taken in executive branch matters. Since both the FBI and DOJ are part of the executive branch of government, any false statements made by those officials or an effort to conceal essential facts in the course of their official duties could be prosecuted as a crime.

  A fourth statute that is relevant is obstruction of justice (18 U.S.C. 1503).73 It is a crime to corruptly “endeavor to influence” a judge in any judicial proceeding. The term “corruptly” is defined as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information” (18 U.S.C. 1515(b)).74 Thus, concealing from the FISA judge the political motives, money, and bias underlying the dossier could constitute obstruction of justice.

  The punishment for committing this crime is incarceration up to ten years.

  The fifth statute that may have been violated is known as “major fraud” (18 U.S.C. 1031).75 This law is most often used to prosecute financial crimes, but the language encompasses a wide range of prohibited behavior. For instance, it is a crime to “knowingly execute, or attempt to execute, any scheme or artifice with the intent to defraud the United States.”76 If the FBI and the DOJ intentionally misled the FISA judge with a “dossier” they knew to be either false or unsubstantiated, this would constitute fraud, punishable by up to ten years behind bars.

  A sixth statute is a conspiracy law that criminalizes an agreement to defraud the government (18 U.S.C. 371).77 It requires proof that “two or more persons conspired either to commit any offense against the United States, or to defraud the United States.”78 A conspiracy prosecution could also be brought against the officials who worked in concert to commit any or all the above-referenced underlying offenses. The penalty reaches up to five years in prison.

  These are by no means all of the crimes that may have been committed by FBI officials and lawyers at the Department of Justice if, as it appears, they intentionally misled the FISA court judges in their four requests to surveil a member of the Trump campaign based on a document they must have known was deeply flawed.

  As for Christopher Steele’s potential criminal liability, lying to or misleading the FBI is a felony under 18 U.S.C. 1001.79 The Senate Judiciary Committee sent a criminal referral to the Justice Department, citing false and misleading statements.

  Glenn Simpson of Fusion GPS could also be prosecuted under this same statute if it is determined that his testimony before various congressional committees was less than forthcoming, especially his apparent failure to fully disclose the role Nellie Ohr played in developing the anti-Trump opposition research.

  In addition, Senator Grassley, chairman of the Judiciary Committee, sent a letter to the Department of Justice expressing his concerns that Simpson and his company, who had not registered as foreign agents, may have violated the Foreign Agents Registration Act (FARA)80 in its pro-Russia lobbying efforts in another case:

  The issue is of particular concern to the committee given that when Fusion GPS reportedly was acting as an unregistered agent of Russian interests, it appears to have been simultaneously overseeing the creation of the unsubstantiated dossier of allegations of a conspiracy between the Trump campaign and the Russians.81

  Fusion GPS claims the money it received came from an American law firm. However, a strict reading of FARA would not protect Fusion GPS from the legal requirement that it register as a foreign agent regardless of whether compensation was delivered through an intermediary.

  It cannot be overlooked that the actions of Hillary Clinton and her campaign, together with the Democratic National Committee (DNC), appear to have violated at least two laws.

  First, paying a foreign national for the anti-Trump “dossier” is illegal under 52 U.S.C. 30121.82 As explained in an earlier chapter, exchanging or donating information alone is not regarded by the law as a “thing of value” under the statute. However, paying for it, as the Clinton campaign did, clearly established its value, making it an illegal contribution from foreign nationals—Steele and the Russians who allegedly provided the damaging information. Fusion GPS was paid more than $1 million and Steele’s company, Orbis, received $168,000 for his work in compiling the “dossier.” This remuneration for a “thing of value” violated the law.

  Second, not properly disclosing the “dossier” payments in reports is also a violation of the Federal Election Campaign Act under 52 U.S.C. 30101.83 A formal complaint was filed before the Federal Election Commission in October 2017 alleging that the Clinton campaign and the DNC “failed to accurately disclose the purpose and recipient of payments for the dossier of research alleging connections between then-candidate Donald Trump and Russia, effectively hidi
ng these payments from public scrutiny, contrary to the requirements of federal law.”84

  Many of the cases involving a breach of campaign finance laws result in civil penalties, such as fines. But in instances of egregious violations, criminal prosecutions and convictions have been brought by the Justice Department which has concurrent jurisdiction with the Federal Election Commission.85 n nationals for an unverified report to discredit a political opponent in a presidential campaign is about as egregious as one can imagine.

  Chapter 8

  Meeting with Russians Is Not a Crime

  A Constitution is not the act of a government, but of a people constituting a government; and government without a constitution, is power without a right.

  —THOMAS PAINE, RIGHTS OF MAN, PART 2, CHAPTER 4

  Why are foreigners on American soil allowed to volunteer their services and provide information to political campaigns in U.S. elections? The reason should be obvious—the Constitution.

  The First Amendment gives Americans the freedom to associate with whomever they want, including Russians. It gives people the freedom to exchange ideas and knowledge, even with foreign nationals. As long as the information conveyed is neither stolen nor classified, there is no crime. There is no civil wrong.

  We do not criminalize free speech and free association in America. Yet, there is this false mentality that all Russians are a threat to national security. Speaking to them is somehow a crime. It is not. The founders of our Constitution would be mortified at that notion.

  Some have asserted that the president’s son, Donald Trump Jr., had an absolute duty to notify the FBI of a meeting he had with a Russian lawyer at Trump Tower during the presidential campaign. Why? Where is that law or duty written? If it is not a crime to converse with, or obtain information from, a Russian, why should the FBI be notified? Why would agents be interested in legal activity? Even if a citizen learns of a crime, in most jurisdictions there is no affirmative duty imposed by law to report it to law enforcement.

  As much as the media, Democrats, and some uninformed lawyers may wish it to be, it is not a crime to meet with a Russian. Nor is it a crime to meet with a Russian lawyer or government official. Even gathering information from a foreign source in a campaign is permissible. Unwise and ill-advised, perhaps. Illegal, no.

  Many in the media are unschooled in the law and often oblivious to the Constitution. They became complicit in misinforming the public about the Trump Tower meeting. Rarely during an interview did a reporter or anchor ask the tough, challenging question, “What laws, specifically, were broken? Can you identify a precise statute?” The answer would have been a deafening silence.

  Our Constitution was never intended to embody a political point of view. It was made for people of fundamentally differing views. Unfortunately, those in Washington who should know that do not. And the media, which owes its existence to that esteemed document, seem to have forgotten its precious guarantees of freedom.

  The Trump Tower Meeting

  On June 9, 2016, Donald Trump Jr. and several others in the campaign met with a Russian lawyer, Natalia Veselnitskaya, who came to Trump Tower under the pretense of having negative information about Clinton. Little, if any, discussion about the Democratic nominee occurred during the meeting. The lawyer seemed mostly interested in pressing her case that Russian adoptions in the U.S. should resume.

  A year later, the New York Times published a story about the meeting, alleging the lawyer had connections to the Kremlin. Democrats and the media immediately seized upon it as evidence of “collusion” with the Russians and all manner of illegality.1

  Virginia senator Tim Kaine, Clinton’s former running mate, branded it “potentially treason.”2 Harvard law professor Laurence Tribe tweeted that “attempted theft of a presidential election in collusion with Putin is a serious felony and a high crime against the state.”3 Richard Painter, a former White House ethics lawyer for President George W. Bush, tweeted “this is treason” and “in the Bush administration we would have had him in custody for questioning by now.”4 Bear in mind that both Tribe and Painter sued Trump within days of his taking office claiming his business holdings violated the “emoluments” clause of the Constitution. That case was later dismissed. But it would suggest they already had a discernable bias against the new president that shaded their inflammatory condemnations.

  All three of these men are lawyers who earned their degrees at Harvard or Yale. Yet, their claims have little support in the law. This underscores the observation of Erasmus, the noted classical scholar who famously dismissed lawyers as, “A most learned species of profoundly ignorant men.”

  Let’s examine the charge. Treason is defined in Article III of the Constitution and codified in 18 USC 2381: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”5

  Meeting with a Russian lawyer and, for the sake of argument, attempting to gather information, was not treason by any stretch of the imagination. Trump Jr. and other campaign associates were not levying war against the U.S., and they were not adhering to enemies of America. The U.S. was not, and is not, at war with Russia. Even if the president’s son received information from the Russian government or otherwise collaborated with foreign officials, it constituted neither waging war nor aiding the enemy as the law defines it.

  This was explained by Harvard Law professor Alan Dershowitz,6 as well as Carlton F. W. Larson, a professor of law at the University of California, Davis, who is authoring a book about treason. Larson wrote the following:

  Enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war. Nations with whom we are formally at peace, such as Russia, are not enemies. Russia is a strategic adversary whose interests are frequently at odds with those of the U.S., but for purposes of treason law it is no different than Canada or France or even the American Red Cross.7

  Before perpetuating the treason canard, Kaine, Tribe, and Painter should have reread the famous 1953 case of Julius and Ethel Rosenberg. They were convicted of espionage for delivering nuclear secrets to the Soviet Union. They were not charged with treason because the U.S. was not at war with the Soviets. Larson extrapolated an even more dire scenario that would still not constitute treason: “Indeed, Trump could give the U.S. nuclear codes to Vladimir Putin . . . and it would not be treason, as a legal matter.”8

  If meeting with a Russian lawyer or any other person connected or associated, however directly or indirectly, with the Kremlin was a crime, then a multitude of U.S. politicians who have met with Ambassador Kislyak might somehow be guilty of breaking the law. In these meetings, information is surely exchanged. No one has ever suggested that it rises to the level of treason or any other crime. Indeed, it is what diplomats and foreign officials do. It is what our officials do in foreign lands. Political campaigns are no different.

  Even if the Trump campaign had acted on information allegedly offered by the Russian lawyer, it would still not constitute treason. Conspiring to subvert the government does not rise to the level of treason. Under our Constitution, Americans are permitted to voice opposition to the government, rage against political opponents, support pernicious policies, or even place the interests of another nation ahead of those of the U.S.

  The only conceivable crime that might have some distant application can be found at 18 U.S.C. 371, entitled “Conspiracy to Defraud the United States.”9 In two cases, the U.S. Supreme Court broadened the statute to makes it a felony for two or more persons to enter into an agreement to interfere or obstruct a lawful function of the government.10 An election would be a lawful government function. However, the agreement must be done by “deceit, craft or trickery, or at least by means that are dishonest.”11

  So, let’s suppose that the Russian lawyer provided information that, as the email to Trump Jr. stated, “would incriminate Clinton and her dealings
with Russia.”12 The Trump campaign then decided to act on the material by disseminating it to the public which would surely have a right to know. How is that deceitful or dishonest? It is not. In fact, it would be information vital to the public interest.

  In any case, a campaign is allowed to utilize any information available to it, provided it is truthful, regardless of its source. Even untruthful information would not be criminally actionable, although a civil lawsuit for defamation might ensue. The Trump campaign could have repeated a truthful claim against Clinton published in Pravda, run by the Communist Party of the Russian Federation, and it would violate no law.

  But this is not what happened. According to both Trump Jr. and the Russian lawyer, she offered no information about Clinton at all. In fact, the lawyer insisted the subject of the campaign was never broached. In an interview with Catherine Herridge of Fox News, Veselnitskaya said, “My meeting was not tied at all with Hillary Clinton or anyone involved with any Democrats and not at all with the presidency or the election.”13

  As for why an email sent by a business associate to Trump Jr. suggested that negative information about Clinton would be provided during the meeting, Veselnitskaya said, “I think he just exaggerated. I don’t know how he came up with this idea, but he decided to use this way to get Donald Trump Jr. interested in meeting with me.”14 The email was a classic bait-and-switch—dangle a tempting pretext to insinuate a lawyer into a meeting that was really about something else entirely. It had no relevance to the campaign or Clinton.

  Let’s play another “what if,” imagining Veselnitskaya is not telling the truth. What if she handed Trump Jr. a file and said, “Here is information that we hacked from the DNC and the Clinton campaign”? If the president’s son accepted the file with the full understanding that it was illegally obtained, then it is possible he could be accused of knowingly receiving stolen property. But there is no evidence this ever happened. Moreover, the government has always been reluctant to pursue cases involving the use or publication of stolen documents or information. The government, for example, tried unsuccessfully to stop the publication of the “Pentagon Papers,” but did not pursue criminal charges against either the Washington Post or the New York Times for making them public.