Former Rare Staff
I am not a betting woman, but if I had to put money on whether President Trump personally colluded with the Russian government to meddle in the 2016 election, I’d put a small and cautious bet on “no.”
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My reasoning does not depend on Trumpian integrity but on his loose lips: the man is a talker, compulsively speaking about himself, his wants, and his motivations even when it is legally or optically foolish to do so.
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By now you may have seen the joke that we can be certain the U.S. government doesn’t have evidence of extraterrestrial life because Trump would have spilled the beans already. My theory on the Russia thing is similar: if Donald Trump had helped fix the American presidential election, he wouldn’t be able to stop himself from boasting about it.
So I think it’s wise to have Special Counsel Robert Mueller investigating collusion allegations, whether it uncovers real malfeasance or simply settles the issue as a non-issue. But if Trump himself is indeed innocent, his compulsiveness presents a real risk. It isn’t hard to imagine a frustrated Trump actually doing something illegal or at least publicly damning in his reckless rush to self-defense.
That prospect may offer the satisfaction that comes in seeing a tragic figure felled by his own flaws, but to “turn human frailty into crime” is not a positive feature of our legal system.
I’ve written about this (as it relates to Trump) before here at Rare, citing some tweeted thoughts from attorney and Popehat blogger Ken White. Since then, White has expanded on the theme in a must-read piece at National Review explaining “the vast power of law enforcement — especially federal law enforcement — to turn investigations of crimes into schemes to produce new crimes.” Here’s the key bit:
Commentators are expressing shock — and in many cases pleasure — that President Trump and his associates could face criminal exposure not for original wrongdoing but for their reaction to accusations of wrongdoing. Nobody who has paid attention to American criminal justice for the last generation should be shocked. It is routine — mundane, even — for federal investigators to convict people not for the subject of the investigation but for how they reacted to it. […]
Investigators and prosecutors will tell you that this is a good thing — that their power to convict targets for lying or obstruction helps catch criminals who would otherwise go free because of problems of proof. But people who hold vast power rarely think they ought not. In fact, the most petty and weak human reactions can lead to federal felony convictions during an investigation. To be a federal crime, a false statement to the federal government must be material — that is, meaningful. But federal courts have defined materiality in a way that criminalizes trifles. Under current law, a statement is material if it is the sort of statement that could influence the federal government, whether or not it actually did. Hence, federal agents interrogating people always ask some questions as to which they already have irrefutable proof, hoping that the target will lie and hand the feds an easy conviction.
Even the innocent often lie in stressful, frightening interrogations, White notes, speaking from his own years of legal experience. “Is that immoral? That’s a philosophical question,” he writes. “Should it lead to a debilitating federal felony when it does not hinder a federal investigation in the slightest, when the federal government was fishing for a lie? No.”
Whatever your take on Trump in general or the Russia investigation in particular, the rest of White’s article is worth your time. Find it here.
