Could Trump Jr., Kushner, or Manafort Be Charged Under the Espionage Act?

The current focal point of the Russia scandal is the confab at Trump Tower, an Apalachin meeting of sorts in which at least eight agents of the Trump campaign and the Russian government met to discuss the Russia's opposition research on the Clintons. The Russians apparently offered this information in exchange for the Trump campaign's willingness to hear them out on the Magnitsky Act. Donald Trump Jr. has protested that nothing ever came of this.

Over the weekend, however, the Associated Press reported on an interview it conducted with one of the Russians at the meeting. Rinat Akhmetshin, a Russian-American lobbyist and former Soviet military officer, claimed that the Russian lawyer who ran the meeting, Natalya Veselnitskaya, not only promised to give the Trump campaign dirt on the Clintons, but actually presented her interlocutors with "a plastic folder with printed-out documents that detailed what she believed was the flow of illicit funds to the Democrats."

Apparently, Trump Jr. was unimpressed with the contents of the plastic folder and asked Veselnitskaya whether she had more concrete evidence. The plastic folder, therefore, may have just contained propaganda. Whether Trump Jr. took the plastic folder with him or whether he left it behind in the conference room is unclear. What was clear, however, was the intent. According to the AP report, "Veselnitskaya presented the contents of the documents to Trump Jr. and suggested that making the information public could help the campaign." And receiving this plastic folder, assuming it really happened, may have implicated the participants in espionage.

The word "treason" has been thrown around to describe this and other putative efforts by members of the Trump campaign to court and be courted by the Russian government during the 2016 election. For reasons that have been described here, here, and here, nothing anyone in the Trump campaign did or conceivably could have done would meet the constitutional definition of treason. (Even being a vice presidential candidate does not make you a constitutional law scholar.)

In the alternative, Bob Bauer and Jed Shugerman have written superb technical posts explaining how Trump Jr., Jared Kusher, Trump's senior advisor and son-in-law, and Paul Manafort, Trump's campaign manager at the time, likely violated campaign finance laws. Helen Klein Murillo and Susan Hennessey made a very clear case for their liability as accomplices under the Computer Fraud and Abuse Act. On Saturday, Seth Abramson wrote a Twitter thread arguing that they violated 18 U.S.C. § 3, as accessories after the fact to any number of crimes the Russians may have been committing. And Kushner could also have violated 18 U.S.C. § 1001 by withholding information about this meeting on his security clearance forms.

But all of these legal theories, even if they prove to have merit, seem to miss the intuitive point that those who levy treason allegations seem to be making. When considered in terms of what the Russia scandal might actually involve — Americans courting an adversarial foreign power for the purpose of influencing the outcome of a presidential election — these crimes, though felonies, seem like technicalities. What makes things like the meeting at Trump Tower troubling is not simply that members of the president's inner circle violated federal laws in order to compromise the integrity of the electoral process. It is that they appear to have compromised the integrity of the electoral process in a way that was disloyal to the country. They made themselves fellow travelers of a foreign power that is openly hostile to America and its liberal values, even if not an enemy of the United States in the technical, constitutional sense.

At the risk of resurrecting yet another obscure part of the U.S. code, I would argue that the national security concerns that prompt right-thinking people to reach for the word treason in these circumstances have a place. But that place is not the crime of treason. It is the admittedly problematic Espionage Act of 1917. And as innocuous as it may have seemed in the moment, Veselnitskaya's plastic folder may have led Trump Jr. across a serious legal line.

We tend now to think of espionage as synonymous with spying, as providing information to a foreign power or leaking state secrets. But espionage, as it was understood in the Espionage Act, is a broader and a more reciprocal legal concept. The Congress enacting the Espionage Act was as, if not more, concerned with U.S. nationals acting covertly to facilitate a foreign power's infiltration of the political system. And a key provision of that aspect of the law remains codified at 18 U.S.C. § 957.

Section 957 provides:

Whoever, in aid of any foreign government, knowingly and willfully possesses or controls any property or papers used or designed or intended for use in violating any penal statute, or any of the rights or obligations of the United States under any treaty or the law of nations, shall be fined under this title or imprisoned not more than ten years, or both.

Section 957 was first enacted under slightly different terms as § 22 of Title XI of the Espionage Act. Title XI's overriding purpose was to broaden the federal government's authority to seek search warrants for national security purposes and to seize foreign political propaganda, in particular. The crime was rarely charged, though in one high-profile case during World War I, the filmmaker Robert Goldstein was sentenced to ten years in prison for releasing a movie, The Spirit of '76, that depicted British soldiers committing atrocities during the Revolutionary War. This movie, it was determined, was made "in the aid of the German Government" and combined with the Espionage Act's various anti-sedition provisions, was sufficient to sustain his conviction under § 957.

Prior to the Supreme Court's decision in Lamont v. Postmaster, § 957 was used less as a criminal charge and more as a basis on which the Post Office could interdict communist propaganda being passed through the mails. In 1938, with the passage of the Foreign Agents Registration Act, 52 Stat. 631 (1938), the Postmaster General gained broad discretion to seize foreign propaganda on the theory that the sender's failure to register with the State Department constituted a violation of the criminal laws, making the receipt of what was mailed a crime under § 957 and the propaganda itself seizable as criminal property. In the lead up to World War II, then-Attorney General Robert Jackson specifically endorsed this daisy-chain use of the law.

Given its overriding use in combination with the Foreign Agents Registration Act, § 957 was included among the other "foreign relations" crimes, such as the newly famous Logan Act, when it was incorporated into the U.S. Code in 1948. Since that time, there appears to have been only one contested prosecution under § 957. In 1989, an American supporter of the Provisional Irish Republican Army was charged, among other things, with developing bomb-making plans. As a "body of insurgents within a country with which the United States is at peace," the Provisional Irish Republican Army constituted a "foreign government" for the purposes of Title 18 and the bomb-maker was convicted. Alan Dershowitz brought an unsuccessful appeal against his conviction under § 957 on First Amendment grounds, but the First Circuit rejected the contention that the law was unconstitutionally overbroad.

In thinking about what transpired in Trump Tower, § 957 would seem to fit the known or reasonably suspected facts. Trump Jr.'s emails confirm that Natalia Veselnitskaya was known to be an agent of the Russian government. It appears based on the current reporting that neither Veselnitskaya nor any of her confederates were registered under the Foreign Agents Registration Act, which in the context of their explicit efforts to lobby against the Magnitsky Act, may have violated various penal statutes. And if Trump Jr. or one of the other American participants in the meeting took the final and crucial step of actually taking the plastic folder, he would have taken possession and control of papers that were the ostensible quid pro quo for his willingness to be lobbied about the Magnitsky Act. Even if the documents inside the plastic folder contained nothing but unsubstantiated rumors and even if he then threw it in the trash after he left the meeting, he still might have violated the Espionage Act. And even if the plastic folder was rejected as a "nothingburger," the American participants in this meeting might still be liable for attempting or conspiring to violate the Espionage Act.

Isn't this just another technicality though? What is the big deal if he took a handout at a meeting? And isn't the century old Espionage Act rather dubious to begin with? In some respects, the answer to all three of those questions is yes. The First Amendment and overbreadth problems with the Espionage Act are significant, and it is unclear how the current Supreme Court, with its robust free speech jurisprudence, would evaluate them.

That said, the willingness to take the plastic folder is not as innocuous as it might first appear. The plastic folder is precisely the kind of "paper or property" that Congress had in mind when it passed §957. Espionage, like treason, is a crime of loyalty, and the evil it attempts to thwart is the covert insinuation of a foreign power's interest into the American political process. Even if the contents of the plastic folder were "vague, ambiguous and made no sense," Trump Jr. would still have accepted propaganda from an unregistered foreign agent. Propaganda marked "foreign propaganda" bears a truth in advertising. And for that reason, it is presumptively less effective at swaying public opinion than information that comes from an ostensibly loyal source, such as a Presidential campaign. In the 1980s, the Supreme Court sustained this truth-in-advertising rationale for the labeling of foreign political propaganda, though reasonable First Amendment minds can disagree. And the original intent of this part of the Espionage Act was to prevent foreign governments from disseminating propaganda through American cutouts.

The willingness to "knowingly and willfully possess or control" the plastic folder also speaks to something deeper. It is one thing to "aid a foreign power," even a foreign power that is adversarial and intent on violating the law. Doing so may violate political norms, but probably not laws. It is another thing to have something tangible in your hands.

The act of possession serves the same purpose in the Espionage Act as the overt act requirement does in the conspiracy statute. It is a clear line that can be identifiably crossed. It prevents the law from sweeping too broadly, from prosecuting mere inchoate desires that are untethered to an identifiable criminal act. It is not espionage to be favorably disposed to a foreign power. Nor is it espionage to welcome the assistance a foreign power may independently provide. It is espionage, however, to do a hand-off.

Will the facts ultimately show that Trump Jr., Kushner, or Manafort could be charged under the Espionage Act? Would such a conviction be sustained against a First Amendment challenge? There is no way to know. And while the reporting thus far has been damning, that may be a consequence of the sources on which journalists have been forced to rely. It is quite possible that innocent explanations could come to light. But if the confab at Trump Tower feels to you like treason, that is probably because it may actually be espionage.

This article by Michel Paradis appeared in Foreign Policy on July 18, 2017.


July 19, 2017

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