There is one final law to be considered. Days after the media reported on the Trump Tower meeting, Nancy Pelosi held a news conference surrounded by like-minded Democrats, during which she declared that the president’s son had broken campaign laws:
This is a campaign violation: soliciting, coordinating, or accepting something of value—opposition research, documents, and information—from a foreign national. Plain and simple.15
Pelosi was wrong. So were others who joined the chorus of condemnation based on laws they have surely never read.
The Federal Election Commission is the independent regulatory agency which enforces campaign laws enacted by Congress. On its government website, the FEC makes it clear that it is perfectly lawful for foreign nationals to be involved in American political campaigns:
Even though a foreign national cannot make campaign contributions, he or she can serve as an uncompensated volunteer for a campaign or political party.16
The commission goes on to explain that foreigners are “allowed to attend campaign strategy meetings and events.”17 They are allowed to contribute ideas, information, and advice. They are permitted to open their mouths and speak.
None of this is considered to be a donation or “other thing of value” under the campaign statutes, as some Democrats, like Pelosi, and many in the media alleged. It is true that the Federal Election Campaign Act prohibits foreign nationals from making a “donation of money or other thing of value.”18 Is information, by itself, a “thing of value”? Sure, one can attach value to anything; just about everything has some measure of value. Words have meaning and, depending on the content, they often have value. But the campaign laws have never interpreted the giving of information as having value in this way. In fact, a close reading of the statute identifies specific examples of what “other thing of value” is supposed to mean in a campaign context, such as contributing to the cost of office space or electioneering.19 Conveying information is not a prohibited contribution.
To the contrary, the Commission specifically states, “an individual may volunteer his or her personal services to a campaign without making a campaign contribution.”20
The same language is found in both the Federal Election Campaign Act and the Code of Federal Regulations:
The value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee is not a contribution.21
Thus, information is a service and is permitted to be given by a foreign national who volunteers. Jonathan Turley, a law professor at George Washington University, reinforced this point when he wrote that if information constituted a thing of value, “the wide array of meetings by politicians and their aides with foreign nationals would suddenly become possible criminal violations.”22 Constitutional lawyer Robert Barnes took it a step further when he penned a column entitled, “If Trump Jr. Is Guilty, So Is Every Democrat Who Takes Information From ‘Dreamers.’ ”23 His headline and the content of his column make a valid point.
Finally, prosecutors could never bring a criminal case against Trump Jr. because they would have to show that he knew he was somehow breaking the law in collecting information from a foreign national. How many people know that it might be, arguably, a violation of the law? I dare say, very few. The campaign laws require what is called specific intent. That is, the person who accepts the donation must “knowingly and willfully commit a violation” of the campaign law.24 For this reason alone, the Trump Tower meeting would not be the subject of criminal prosecution.
The Kislyak Meeting at Trump Tower
In May 2017, the Washington Post ignited a media firestorm by publishing a story that Jared Kushner and Michael Flynn met with the Russian ambassador, Sergei Kislyak, in December 2016 after Trump won the presidential election but before he was sworn into office on inauguration day.25 The article stated that Kushner broached a discussion about “the possibility of setting up a secret and secure communications channel between the Trump transition team and the Kremlin.”26 Both Kushner and Flynn were key members of the transition team preparing for the many challenges facing the incoming administration.
Within an hour of the report, television anchors and pundits declared it a “bombshell”—their favorite description of anything related to Trump. Very few bothered to point out that nearly every recent president had established and relied on similar back-channel contacts with Moscow and other nations.
Notably, President John Kennedy depended on two sets of back-channel communications with the Soviets to defuse the Cuban Missile Crisis in October of 1962. His brother Robert Kennedy, the attorney general, arranged an urgent deal with Soviet ambassador Anatoly Dobrynin to remove the missiles in Cuba in exchange for the U.S. removing obsolete missiles in Turkey. At the time, the State Department commandeered ABC correspondent John Scali to work out other details with Soviet Embassy official Alexander Fomin. A catastrophic nuclear exchange was averted.27
It made no difference whether the idea of a private communications channel was broached before or after President Trump took office. It is a distinction without a difference. As then homeland security secretary John Kelly observed, “It’s both normal, in my opinion, and acceptable.”28 Richard Moss, a professor at the U.S. Naval War College, pointed out, “There’s a long tradition of it—it goes back as long as diplomacy itself.”29 He was right. Back-channels were utilized in the Roosevelt, Nixon and even the Obama administrations. Nevertheless, stories in the press persisted that laws must have somehow been broken.
What Kushner did was neither improper nor different from what other incoming presidential administrations have done. It certainly did not constitute a crime.
After the election and before Trump took office, Kushner received “over one hundred contacts with people from more than twenty countries” while he was acting on behalf of the president-elect.30 Previous entering presidents and their transition teams have engaged in similar contacts and conversations.
According to Kushner’s public statement, he met with Kislyak to discuss improved relations and “to address U.S. policy in Syria.”31 Later, Kushner met with a Russian banker, Sergey Gorkov, “who could give insight into how President Putin was viewing the new administration and best ways to work together.”32 How exactly were those meetings counterproductive, uncommon, or illegal? They were not.
Professor W. David Clinton, chairman of the Political Science Department at Baylor University, who co-authored the seminal book entitled Presidential Transitions and American Foreign Policy, told me that he read Kushner’s statement and found nothing wrong with his meetings with Kislyak.33 Professor Clinton pointed out that it is the very same practice employed by other presidential transitions:
It is common for representatives of other governments to get in touch with the incoming presidential administration to begin informal relationships and address relevant issues. It is not unusual. Transitions are fairly long. The incoming administration needs to inform itself of foreign policy. Getting to know people and foreign governments is widely done and beneficial to the United States.34
Innumerable accusations that Kushner violated the Logan Act were naive and without merit.35 The Act prohibits private citizens from interfering in diplomatic disputes with foreign governments. As Kushner’s statement explained, he did nothing of the sort. Because the meeting occurred after Trump was elected, but before he took office, the media and Democrats continued to claim that the Act was breached.
No one has ever been convicted under the Logan Act, passed in 1799, largely because lawyers, judges, and constitutional scholars regard it as an unconstitutional affront to the First Amendment.
A persuasive argument could be made that the Logan Act is no longer operable because it has remained dormant, if not dead, for more than two centuries. Prosecutors have long been schooled not to resurrect a statute that has fallowed for such a long period. Instead, it should be allowed to rest on the books of our criminal codes as a relic collecting dust.
But even if it were somehow germane and valid, Kushner was not acting as a private citizen as the Act requires. He was acting in a wholly different capacity—as an incoming government representative of the person about to assume the presidency and the reins of the executive branch and who would be constitutionally authorized to conduct foreign affairs. Accepted historical precedent is also relevant. As Professor Clinton explained, other presidents have had detailed discussions with foreign governments before officially taking office.
Kushner was preparing the forthcoming administration for the foreign policy challenges that lay ahead and establishing the kind of vital contact that would assist the new president in formulating effective relationships and policies. In other words, Kushner was doing his job. He did it in the same manner that other transition officials have done in previous administrations.
In his appearance before congressional committees, Kushner explained that Trump had asked him to serve as the “point of contact” with foreign officials who were reaching out to discuss a variety of issues. Ambassador Kislyak wanted to discuss the fight against terror in Syria:
He wanted to convey information from what he called his generals. He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines.
I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. Nothing else occurred. I did not suggest a “secret back channel.” I did not suggest an on-going secret form of communication for then or for when the administration took office.36
By his statement, Kushner disabused the media reports that he had sought some “secret back channel” to the Russian government. As it turned out, Russian generals apparently wanted to provide sensitive information on Syria that might prove helpful and sought a protected method to convey it. It was an attempt at cooperation and future coordination as the U.S. and Russia pursued a common goal—to destroy the ISIS caliphate in Syria.
During the meeting, the Russian ambassador asked if there was a secure line in the transition office to conduct such a conversation. There was not. Kushner, interested in defusing the humanitarian crisis in Syria, asked if the existing communications at the embassy could be used. It could not. This impasse ended the discussion.
Secure lines are not an extraordinary means of communicating with foreign governments. Indeed, they are conventional and unremarkable, especially when prospective military information is being shared.
Democrats might feel the Trump team was adopting a dangerous and incorrect policy. They might believe the new administration was choosing the wrong allies. That’s a standard set of concerns one party has about the other. What an incoming administration does is the kind of thing elections decide. In this case, it was neither nefarious nor criminal.
The media was undeterred. It changed tactics to speculate that Kushner committed a crime by omitting his Russian meetings when he filled out his security clearance forms. But the press scarcely mentioned that people frequently commit errors and omissions in filling out the complicated security forms and are rarely prosecuted because it is exceedingly difficult to demonstrate that information mistakenly omitted was, in fact, “knowingly falsified or concealed,” as the law demands.37 Since violation is not a strict liability crime, any prosecutor would have to prove “specific intent.” That is, Kushner tried to deliberately deceive the government. Incomplete paperwork, by itself, is not a crime.
Kushner explained the error in his statement to Congress. His assistant mistakenly sent on January 18, 2017, what was only an uncompleted draft. It omitted all foreign contacts, not just the Russian meetings. The mistake was noticed immediately that same day, and the transition team was notified that night. The team promptly informed the FBI the next day and thereafter delivered supplemental information that disclosed “numerous contacts with foreign officials.”38
Still later, a complete and accurate list was given to the bureau that disclosed all foreign contacts. These events were in no way a violation of the law nor criminal. In fact, the Security Clearance form instructs the applicant that the document can be updated and clarified as part of the clearance process.39 There was no evidence whatsoever that Kushner tried to deliberately deceive the government.
For months, Kushner was mugged by the media mob with wild and baseless accusations of criminality. In truth, his crime was no crime at all. Sadly, very few reporters made an effort to place his meetings in the context of history and precedence, as Professor Clinton did. There was no attempt by the media at fairness or reasoned analysis.
The late U.S. Supreme Court Justice Tom Clark once wrote, “This nation was dedicated to freedom under law, not under mobs.”40 Justice Clark cared deeply about the role of the news media in holding our government accountable. But he would be dispirited to see their embrace of “mobocracy,” as he once described it.
Today’s mainstream media is the mob as a ruling class. They assert political control by denigrating and vilifying. No act by Trump or anyone in his administration, however slight, will be spared a full-throated “scandal” as declared by the media. All deeds are to be treated as potential crimes or impeachable offenses.
Frankly, the media deserves a good mugging. Their treatment of Jared Kushner proves it.
Sessions’s Interactions with Kislyak
Other than a brief encounter, including a handshake, with Ambassador Kislyak at a speech in Cleveland during the Republican convention in July 2016, Senator Jeff Sessions, who campaigned for Trump, had one meeting of substance with Kislyak in his Senate office, in September 2016. The conference was requested by the ambassador because Sessions sat on the Armed Services Committee which dealt with military appropriations overseas in matters involving Russia.
Later, during his confirmation hearing to be attorney general, Sessions did not mention the meeting when asked about any contacts between Trump campaign surrogates and any Russians. When news broke that Sessions had met with Kislyak, House Democratic leader Nancy Pelosi held a news conference to denounce Sessions as a liar, all but pronounced him guilty of perjury, and demanded his resignation.41 The media seized upon the meeting as evidence of Trump-Russia “collusion.”
What did Sessions do to invite such condemnation? By his account, he told the truth. When asked by Senator Al Franken during his hearing about “a continuing exchange of information during the campaign between Trump surrogates and intermediaries for the Russian government,” Sessions responded as follows:
I am not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with Russians, and I’m unable to comment on it.42
In a subsequent questionnaire issued by Senator Patrick Leahy, Sessions answered “no” when asked the following:
Several of the President-elect’s nominees or senior advisers have Russian ties. Have you been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day?43
Sessions’s answer was “no.”
As posed, the questions specifically asked Sessions about any exchange of information with the Russians by campaign surrogates and any discussion of the election itself. Following the hearing, the attorney general insisted that he responded honestly. That is, he never spoke with a Russian official on behalf of the campaign or about the election. In a statement, he said, “I never met with any Russian officials to discuss issues of the campaign. I have no idea what this allegation is about. It is false.”44
According to Sessions, he had more than twenty-five conversatio
ns with foreign ambassadors in 2016 as a senior member of the Senate Armed Services Committee, including diplomats from Poland, Latvia, Lithuania, Hungary, Japan, Canada, and Australia.45 Twice he spoke with the Russian ambassador, Kislyak. On a third occasion, Kislyak was present at an event in Washington, but Sessions did not recall speaking with him.
One meeting at a Heritage Foundation conference, co-sponsored by the U.S. Department of State, entitled “Global Partners in diplomacy,” was held in Cleveland during the GOP convention. Foreign ambassadors to the U.S. were invited to converse with American officials, including Sessions, about national security issues, trade, and other foreign policy matters. Sessions insisted that he spoke with Kislyak only in his capacity as a senator and never about the campaign or election.46
The second meeting happened two months later in his Senate office. Again, Sessions maintained their conversation had nothing to do with electoral politics and everything to do with carrying out the functions of his job as a U.S. senator serving on the Armed Services Committee. Two of his senior staff members, both retired Army colonels, attended. Specific topics included combating terrorism and Russia’s interests in Ukraine.47
At a news conference in March 2017, Sessions bristled at the notion that he had done anything wrong or had deceived Congress during his confirmation hearing:
I never had meetings with Russian operatives or Russian intermediaries about the Trump campaign. And the idea that I was part of a quote, continuing exchange of information during the campaign between Trump surrogates and intermediaries for the Russian government is totally false.48
The Russia Hoax Page 17