Yes Collusion! 2:"Russia, if you're listening . . ."

On 8/2/18, I devoted a post to Trump’s famous July 27, 2016, invitation, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”  I there contended that this did not constitute a violation of any federal solicitation-computer crime statute, but that it arguably constituted criminal solicitation of a foreign (“in kind”) campaign contribution in violation of the election laws. I added, in passing, that it was potentially an impeachable offense. https://lawrencecrocker.blogspot.com/2018/08/was-trumps-russia-if-you-are-listening.html.

I have seen no reason to revise those conclusions substantially. I still think that there is a respectable argument that Trump violated the solicitation provision of the election law, a violation not merely civil, but a criminal. It is simply implausible that he did not think he was asking for something that he expected to be of very substantial value to the campaign – certainly more valuable than many thousands of MAGA hats.  It is also implausible that he had not been told about the prohibition against foreign contributions.

What I want to do here is first to extend the analysis to consider Trump’s defense to accusations against his statement: “Of course I was being sarcastic.” (Interview on Fox and Friends.); "[I]n jest and sarcastically, as was apparent to any objective observer." (Written answers to Mueller questions.)

 

Second, I want to return to the question of Trump’s claims that he has been fully vindicated with respect to all claims of the sort that he or his campaign colluded with the Russians.

 A.      The “In Jest” Defense

The Facts.

Let us put aside that Trump does not quite know the meaning of “sarcastic,” and take him instead to be relying on his speaking “in jest,” that is, that he was just joking when he said that the he hoped the Russians would find Clinton’s emails. 

If you watch the press conference in which Trump expressed his hope to the Russians, it does not sound like he is joking. His tone of voice, his body language, his overall demeanor seem very much the same as in the preceding minutes of his opening remarks containing his standard attacks on Clinton. There is no more reason to doubt the seriousness of his Russian remark than that of any of the preceding anti-Clinton screeds. No one in the crowded room laughed or even tittered when he made the remark at issue.  

Katy Tur asked, "Do you have any qualms about asking a foreign government — Russia, China, anybody — to interfere, to hack into the system of anybody's in this country?" After Trump tried to turn the conversation to his claim that Putin had no respect for Obama, Tur asked again about the Russians and the emails, "Does that not give you pause?" His response was not, “You know I was joking, don’t you?” Instead it was “No, it gives me no pause.”

If he were jesting, then presumably he did not hope that the Russians would find and make public the missing Clinton emails. Does anybody really believe that he didn’t hope that? 

When his advisors, either in the White House or at Fox, told him it was time for damage control, he couldn’t even get his cover story quite right.  It might have been, “I guess the joke was just too subtle for some of the media to get, and when I said ‘It gives me no pause,’ they should have known that I meant that it gave me no pause because it was all a joke.” 

When he recounted at a campaign rally how stupid the media were in not realizing it was a joke, he said that he made the comment “at a rally,” and recreated the event in an exaggeratedly boisterous manner. However, he made his invitation to the Russians at a formal press conference, not a rally, and his demeanor when he reprised the event at a real rally was nothing like the original. His defense in front of his fans had all the earmarks of what a prosecutor would call “consciousness of guilt.”

The Law.

The “just joking” defense is often tried in cases in which the charge is solicitation of a crime. I know of no case in which it has succeeded. Of course, the great bulk of these defendants were soliciting an act of prostitution, which is sort of a special case. Sometimes, however, the arrested John actually has a factually more persuasive defense than Trump’s. The slightly inebriated seeker after a good time might say: “If you hadn’t slapped handcuffs on me, I would have laughed and said ‘Oh, you charge way too much!’ That was my plan. I never intended actually to pay for sex. Do I look like the kind of guy who needs to pay for sex? It was all just so funny.” And so on.  Occasionally, this might even be true. The prosecution’s evidence that the defendant was not, in fact, joking is often not particularly strong when measured against the reasonable doubt standard. Still, it succeeds.

In a solicitation of murder case in California the defense pointed out how “nonsensical” the defendant’s alleged solicitation plans had been and argued that they were mere musings of a spurned lover that could not be taken seriously. The judge responded, “If this is all a big joke, I’m not getting it.”

A “just joking” defense to solicitation might conceivably succeed when there are other indicia that the situation is one in which joking is to be accepted, when the manner of presentation or the demeanor of the speaker suggests a humorous intent and when there is evidence that the speaker would not have wanted the supposedly solicited act to take place. None of these was the case at Trump’s press conference.

B.      Collusion.

Assuming a culpable state of mind, all the elements of solicitation to violate the election law are made out in Trump’s “Russia if your listening, I hope you’re able to find the 30,000 emails that are missing.”  What about collusion?

What did “Russia, if you’re listening . . .” Communicate to Vladimir Putin and his agents?  First, that Trump would be glad of Russian help with his campaign; Second, that Trump had no concern about the legality of foreign help;  Third, that such help could well take the form of publicizing negatives about Hilary Clinton; Fourth, that Trump was not explicitly restricting his interest to anti-Clinton material that was legally obtained. It appears that the Russians got the message. As is well known they started their hacking operation within five hours.

In contract law, an offer followed not by express agreement but by performance is often deemed the acceptance of the contract. Trump's "offer" may not have had all the elements required of the agreement by performance doctrine, but Russia’s response to Trump’s solicitation put us well into the territory of collusion.This territory was penetrated yet farther by the Trump Campaign’s use of the publicized emails and Trump’s repeated praise of their primary publisher. It isn’t conspiracy, on the available evidence, and it may not be election-law-solicitation, but it is collusion of a species the House of Representatives might well want to take into account.