In addition to the case for Donald Trump’s obstruction of justice by firing former FBI Director James Comey, evidence is mounting that the president participated in a conspiracy to violate the federal election law. Mueller could either ask a grand jury to indict Trump as a co-conspirator or to name the president as an unindicted co-conspirator.
Federal election law
Trump’s August 5 tweet that the purpose of the June 9, 2016, Trump Tower meeting between Donald Trump Jr., Jared Kushner, Paul Manafort and Russian operative Natalia Veselnitskaya “was to get information on an opponent” was tantamount to an admission of a conspiracy to violate federal election law.
Although the president added it was “totally legal and done all the time in politics,” he was mistaken about the “totally legal” part.
The federal election law says it is unlawful for “a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value … in connection with a Federal, State, or local election.” Providing the Trump campaign with dirt on Hillary Clinton to discredit her in the election constitutes a “thing of value.” It is also illegal for “a person to solicit, accept, or receive a contribution or donation … from a foreign national.”
Another federal law makes it a crime for two or more persons to conspire to commit an offense or defraud the United States. The defraud clause criminalizes “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.”
Trump also tweeted that “it went nowhere.” But there is legal liability for conspiracy even if the purpose of the conspiracy is not accomplished.
A conspiracy is complete upon an agreement by two or more people to commit a crime followed by at least one overt act in furtherance of the conspiracy, even if that crime is never committed. The overt act need not be unlawful in itself.
Six days before the Trump Tower meeting, British tabloid reporter Rob Goldstone emailed Donald Trump Jr. that the Russian government had “some official documents and information that would incriminate Hillary,” adding, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.” Seconds later, Trump Jr. replied, “if it’s what you say I love it.”
Conspiracy to violate the federal election law
Trump Jr. arranged the meeting with the expectation of receiving negative information the Russian government purportedly had about Clinton. That constituted an agreement between Goldstone and Trump Jr. to violate the federal election law.
Arranging the meeting and attending the meeting were both overt acts. Everyone who attended the meeting with knowledge of its purpose and the intent to further that purpose is liable for conspiracy to violate the federal election law.
All co-conspirators are legally responsible for the acts of the other co-conspirators, even if they didn’t directly participate in those acts or are unaware of the details of the conspiracy. Trump need not have attended the June 9 meeting to be liable as a co-conspirator.
Trump ended his August 5 tweet about the Trump Tower meeting by saying, “I did not know about it!”
There is evidence that Trump did know about the meeting. Trump’s former lawyer, Michael Cohen, claims the president was in the room, learned about the Russian offer, and approved the June 9 meeting. And Rudy Giuliani, Trump’s current lawyer, let slip that a meeting between Trump, Trump Jr., Paul Manafort, Jared Kushner and Manafort’s top deputy Rick Gates took place on June 7.
On the evening of June 7, Trump announced that he would “give a major speech” during the following week to reveal “the things that have taken place with the Clintons.” Trump never delivered that speech.
If Trump approved the June 9 meeting, that approval constitutes another overt act.
Even if Trump didn’t know of the June 9 meeting beforehand, heparticipated in a conspiracy to cover it up by later dictating a false statement about the purpose of that meeting.
In the memo he drafted, Trump said the people present at the Trump Tower meeting “primarily discussed a program about the adoption of Russian children” and the topic of the meeting was “not a campaign issue at the time.”
Can a sitting president be indicted?
Whether or not a president can be criminally indicted during his time in office is a matter of controversy.
But a memo from independent counsel Kenneth Starr’s investigation of Clinton says a president can be indicted for criminal activity: “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties. In this country, no one, even President Clinton, is above the law.”
Some legal scholars argue that the Constitution provides the remedy of impeachment for a law-breaking president, who can only be charged with a crime after he leaves office.
But Hofstra University law professor Eric Freedman wrote a 1999 law review article explaining why a sitting president could be indicted. He noted that other federal officials, such as judges, who are subject to impeachment, have been indicted during their tenure in office.
Jonathan Turley, a George Washington University law professor writing in The Washington Post, concluded that a sitting president can be charged with a crime. “An indicted president is a terrible proposition,” Turley wrote. “But so is the continuation of a presumed felon in office — one who clings to power as a shield from accountability.”
Giuliani told “Fox & Friends” that Mueller’s office informed Trump attorney Jay Sekulow that the special counsel did not have the power to indict a sitting president.
Mueller has made no public pronouncement about the propriety of indicting Trump while in office. The special counsel is required to send a confidential report to Deputy Attorney General Rod Rosenstein, who appointed Mueller after Jeff Sessions recused himself from the Russia investigation. Even if Mueller does not think he can indict Trump, Rosenstein could override that decision.
The Supreme Court has not ruled on whether a sitting president can be criminally indicted. But in 1997, the high court held in Clinton v. Jones that a president could be the subject of a civil lawsuit while in office.
Trump could be named as an unindicted co-conspirator
If Mueller does not ask a grand jury to indict Trump, he could request that they name the president as an unindicted co-conspirator if the special counsel files an indictment against others, such as Trump Jr., Kushner and Manafort.
There is precedent for this course of action. In 1974, a grand jury indicted seven associates of President Richard Nixon for the cover-up of the Watergate burglary. At the request of special prosecutor Leon Jaworski,the grand jury named Nixon as an un-indicted co-conspirator.
Ultimately, if Trump can’t be indicted, he may not be able to refuse a subpoena to testify before a grand jury by claiming the privilege against self-incrimination. He could not incriminate himself due to his alleged immunity from prosecution. But he could take the Fifth while still in office if he faces post-presidency indictment.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace. An updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was recently published.