The 24/7 media firestorm over Donald Trump Jr.'s meeting with Russian lawyer Natalia Veselnitskaya, who promised opposition research on his father's Democratic presidential opponent Hillary Clinton, may turn out to be — like many media controversies in the Trump era — much ado about nothing.
That is because a legal technicality — consider it a much more explicit version of the same excuse that got Hillary Clinton off the hook with her private email server — could exculpate Trump Jr. from criminal or legal sanction.
It should be said this legal technicality pertains only and particularly to Trump Jr. It wouldn't necessarily hold true for the two Trump campaign officials in on the June 9 meeting at Trump Tower, Paul Manafort and Jared Kushner. It also doesn't clear any potential wrongdoing by the representatives of Russian background: Veselnitskaya, Akhmetin, or any Russian translator involved.
In a post at the Yale Journal of Regulation, Andy Grewal lays out the case that Trump Jr. could not be successfully prosecuted if he had ignorance of campaign finance laws restricting the receiving of valuable goods or services from foreign nationals.
Grewal lays out the relevant statute and the legal and constitutional ramifications:
Most of the initial legal commentary has focused on whether Trump Jr. violated a provision of the Federal Election Campaign Act (FECA), 52 U.S.C. 30121(a)(2), which prohibits any person from soliciting a contribution or donation from a foreign national (as defined). Scholars have debated whether that statute, properly interpreted, establishes an improper solicitation or similar offense. Scholars have also debated whether, even if Trump Jr.’s conduct comes within the statute, the statute would be unconstitutional.
Then the author makes the case that Donald Trump Jr.'s actions may not constitute a display of mens rea, since there may not be sufficient evidence to show he “knowingly and willfully” broke the law:
Most of FECA’s prohibitions, including those related to the solicitation of contributions/donations from foreign nationals, create criminal consequences only when a person “knowingly and willfully” commits a violation of the statute…
This heightened mens rea standard means that a person must know that he is breaking the law to trigger a criminal prosecution, and must know about the relevant statute duty: The “words [‘knowingly and willingly’] of specific criminal intent require proof that the offender was aware of what the law required, and that he or she violated that law notwithstanding that knowledge."
As Law Newz points out, there is an additional legal threshold to carry a successful prosecution of Donald Trump Jr. Thanks to a case decided by the Ninth Circuit Court of Appeals, United States v. Whitmore, prosecuting attorneys must prove that the defendant knowingly and willfully violated the law.
This is a commentary piece. The views expressed in this article are those of just the author.