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The Russian connection and U.S. law

There is much confusion in the mainstream media and on talk shows between the political concept of “impeachable offense” and the legal definition of “criminal offense” in U.S. jurisprudence. How do these two terms apply to the “Russia connection,” if at all? Also, to add to the confusion, a sitting president can be turned out of active office for “inability” to carry out the duties of the office, although technically that “inability” is not impeachable and is not itself a crime.

The U.S. Constitution (Article II, Section 4) provides for impeachment by the U.S. Congress of office holders for  “High Crimes,” but the Constitution does not define what an impeachable “High Crime” is. It’s whatever the House and Senate choose to say it is. That decision is made by purely political vote. Consequently, if a controlling majority political party in Congress digs in its heels and either affirms or denies the allegations, impeachment carries or it fails.  Full stop, end of story. There is no pathway for appeal to the courts of law or higher authority.

By contrast, such allegations are only the beginning of a well-defined judicial process, leading to an outcome based on findings of fact and the rule of criminal law. Let’s look at the Trump-Russia connection in the light of several potentially applicable laws, to see whether the shoe fits. In doing so, we recognize that the current apparent “preponderance of the evidence” would eventually have to be raised to the standard of guilt “beyond a reasonable doubt” for criminal conviction to take place. We aren’t there yet.

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The Emoluments Clause of the U.S. Constitution (Article I, Sect. 3) states that no person holding any office of profit or trust shall, without consent of the Congress, accept any present or emolument, of any kind whatever, from any foreign state. Is there any doubt in your mind that Trump has received financial benefits of several kinds from Russia in the past, and that he continues to do so as president?  Is dirt on a political opponent (e.g., Hillary Clinton) received from Russia  not a “thing of value” received from a foreign state? It’s still used by Trump to legitimatize himself today. That is potential crime number one.

The Logan Act of 1799 criminalizes negotiation by unauthorized persons with foreign governments having a dispute with the United States. Is Russia not having a dispute with the United States?  Is there any doubt in your mind that prior to the 2016 election, members of the Trump campaign were having (then-secret, now admitted and proven) meetings with Russian officials, without authorization from the Obama administration?  Is it plausible that Trump did not know that his own son, his son-in-law, his campaign manager and his national security adviser were having such unauthorized discussions with Russians under his own roof? That’s potential crime number two.

The Foreign Corrupt Practices Act of 1977 forbids American entities from participating in any scheme to reward a foreign government official in exchange for material benefit or preferential treatment. This Act normally applies to companies, not individual persons, but in the case of Trump and the Trump organization, is this a material difference?  Is there any doubt in your mind that Trump and his organization rewarded and protected Russian agents and oligarchs and at the same time have benefited from Russian financing, Russian money laundering, Russian (often fake) occupancies in Trump hotels and towers, and Russian memberships in Trump golf courses, casinos and resorts — the benefits of which continue to this day? These allegations and proven facts smell of corruption. That’s potential crime number three.

The Computer Fraud and Abuse Act of 1986 (18 USC Sect. 1030) criminalizes the accessing of a protected computer without authorization, and hacking the system (e.g. worms, viruses, back-door keys, etc.) and/or thereby extorting or obtaining from any person confidential communication information,  privileged or governmental information,  or devices, codes or passwords, etc.  

Is there any doubt in your mind that the Russians used computers fraudulently to hack the 2016 U.S. elections and disseminate false information, and that they hacked the Democratic Party’s and Hillary Clinton’s emails? Is there any doubt that (as now reported to the FBI  by “coffee boy” George Papadopoulos and others) the top people in the Trump campaign knew all about this, and welcomed it,  as early as May 2016, but lied to Congress about it, and Trump himself urged the Russians to make “crooked” Hillary’s emails public via Wikileaks? (Personally, I give Papadopoulos a pass, a pardon, if not a prize, for the courage to leak the truth.) This makes a pretty clear case for computer fraud and abuse, and conspiracy and collusion to commit and conceal a crime, in short, obstruction of justice.  Crimes number four, five and six.

 

The ultimate crime of treason 

The U.S. Constitution finally gives us a workable definition of the impeachable offense, and more importantly the high crime, which is “Treason.” Simply put: Treason consists of giving “aid and comfort” to enemies of the United States. Is Putin’s Russia right now not an “enemy” of the United States?  In the current context, is there any doubt in your mind that Trump and the Trump administration have “probably” given “aid and comfort” to Russia, to Putin and to an array of Russian agents and oligarchs? Did Trump personally give national security information about U.S. Navy ship locations, and inside sources for information on the war on terror in the Middle East, to a Russian agent? Would that be treason, a felony for which there can be no immunity or pardon?

Was there a deal between the Trump campaign and Putin’s Russia such as: You hack the U.S. elections, and in return we’ll waive sanctions and let you keep occupied Russian-speaking Crimea and E. Ukraine?  There’s a name for this: It’s called “appeasement,” bordering on treason. Wasn’t Trump’s firing of FBI Director James Comey, a prima facie case for obstruction of justice to terminate the investigation and conceal an act of Treason? 

My best guess is that if the lawful investigation now being undertaken by Special Counsel Bob Mueller is not derailed by GOP politicians, oligarchs and Trump himself, the high crime of treason will be the ultimate truth that the investigation will most likely reach, and prove, meeting the criminal law standard of guilt “beyond a reasonable doubt.”

In short, treason is the ultimate crime. But this is not for “We the People” or the public media to decide. We have to wait for the unobstructed lawful investigation to run its course, and provide needed proof of actual fact of wrong-doings, to justify whether allegations should be dropped or pursued and prosecuted.  

If the latter, then the charges must be submitted to trial by jury to find innocence or guilt, ending in case dismissal or criminal conviction and punishment under law. That is the required path of due process leading to justice for all.

Anthony Piel is a former director and general legal counsel of the World Health Organization.