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November 10, 2017

Here is an exposition and presentation of some of this week’s national security-related threads authored by Just Security Editorial Board member and former federal prosecutor Renato Mariotti.

Trump Jr. Meeting with Russian Lawyer in June 2016

In the thread below, Renato analyzes whether the June 9, 2016 meeting between Donald Trump Jr. and Russian lawyer Natalia Veselnitskaya at Trump Tower could carry criminal implications in light of news reports this week. Trump Jr. may have promised that the Trump administration would take a look at the Magnitsky Act (which targeted Russian officials), and in the same meeting, asked Veselnitskaya whether she could provide financial documents showing that money that had evaded U.S. taxes went to Hillary Clinton’s campaign.

The potential federal criminal charge includes honest services fraud, defined in 18 U.S.C. § 1346. In public corruption cases applying the statute, the theory of the case is that a government official offers an “official act” in exchange for something “of value.” Here, there are two legal wrinkles and two factual wrinkles.

First, an “official act” presumes that a person is in a position of power such that they can perform the official act. A legal question is whether a promise of an official act during an electoral campaign constitutes an “official act.” If that were not the case, it would seem that the honest services law would have a significant flaw in failing to capture campaign quid pro quo arrangements and corruption. If it were the case, that would open up the question of what would happen if the campaign official or their candidate did not follow through with the promise once elected.

Second, if a federal honest services charge could be brought against Trump Jr., President Trump could easily pardon him. That raises the question of whether New York state public corruption law also applies. Renato notes the NY penal statute below. If NY state law would apply, President Trump’s federal pardon power would not be able to stop NY Attorney General Eric Schneiderman from bringing a state prosecution.

Third, in terms of factual wrinkles, it is not clear from the reporting whether Trump Jr. or the lawyer understood this to be an exchange. We know that Veselnitskaya told Bloomberg that Trump Jr. both promised to take a look at the Magnitsky Act, and also asked for the documents, but not what the mental state of each were (whether they understood it to be an offer of an exchange).

Fourth, as former CIA Clandestine Service officer John Sipher says below, the legal case above rests on whether a prosecution is able to corroborate Veselnitskaya’s claims, because as Mariotti notes, she presents major credibility problems.

Mueller has Enough Evidence to Indict Michael Flynn and His Son

In these two threads, Renato outlines Special Counsel Robert Mueller’s likely strategy in light of a report that he has enough evidence to indict Michael Flynn and his son Michael Flynn Jr. That strategy would probably involve informing Michael Flynn of an impending indictment of his son, in hopes of securing Flynn’s full cooperation in the Special Counsel’s investigation.

Mariotti also notes that Flynn Jr. has attacked Mueller on Twitter, suggesting two things: (1) that Flynn and his son are aware of potential charges by Mueller and have decided to refuse to cooperate, (2) that Flynn and his son both may expect a pardon from Trump in the case of an indictment by Mueller, and are not very concerned about state-level charges that Trump can’t pardon. Renato highlights that, on the other hand, if more recent reports are true that Flynn is worried about his son’s legal predicament, it suggests the Flynns may not be so confident in the possibility of a pardon.

Congressional Bill Calling on Mueller to Resign

Here, Renato says that Rep. Mike Matt Gaetz (R-Fla.)’s resolution calling on Mueller to resign is dangerous in inhibiting law enforcement’s ability to do its job. The resolution does not cite Mueller’s breaking of any kind of ethical rule or law, but rather for telling an FBI informant that he couldn’t publicly reveal information while Mueller served as FBI Director (2001-2013). Renato adds that it is commonplace for law enforcement to tell informants not to publicly reveal matters that are currently under investigation, and that Mueller himself did not even do so, but rather that agents under Mueller did. Thus, in Renato’s view, Gaetz’s resolution calls on Mueller to resign because the FBI agents under him did their jobs as law enforcement officers.

Papadopoulos Revelations Raise Concerns About Sessions’ Honesty

Here, Renato states that revelations from court records in George Papadopoulos’ case suggest that Attorney General Jeff Sessions may not have been entirely honest in denying any Trump campaign contacts with Russian officials during his Senate testimony.

Just Security’s Co-Editor-in-Chief Ryan Goodman and I argue that it is a “Close Call” whether perjury charges could be leveled against Sessions in light of reports that Papadopoulos and Page both informed their Trump campaign supervisors about Russian contacts.

 

Trump Security Chief Testifies to Congress That He Rejected Russian Offer to Send Women to Trump’s Hotel Room

Here, Renato analyzes the important role that Trump’s security chief could have in corroborating the Steele dossier and testifying as to personal interactions with Trump:

 

 

 

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