How the Russia Investigation Could Turn on 50-Year-Old Court Case

(AP Photo/J. Scott Applewhite)

Jared Kushner arrives on Capitol Hill on July 24, 2017, to meet behind closed doors before the Senate Intelligence Committee on the Russia investigation.

“Whoever commits an offense against the U.S. or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.” —18 U.S.C. 2

Under the United States federal criminal code, anyone who violates the country’s federal statutes is subject to prosecution. Since the emails involving Donald Trump Jr.’s contacts with a Russian government-connected lawyer have been publicized, legal and linguistic experts have been debating whether and who may have been guilty of criminal wrongdoing. To paraphrase George and Ira Gershwin over contacts with Russian operatives: “You say collusion, and I say collision,” while the president sings, “Let’s call the whole Russia thing off.”

When I was an organized crime prosecutor in the Justice Department under Attorney General Robert Kennedy, I tried a case that ultimately went to the Supreme Court. That ruling, U.S. v. Charles E. Lester and Edward Anthony Buccieri, sheds light on the current debate regarding Trump Jr.’s notorious meeting with Russian operatives. The ruling deals with the second section of the federal criminal code noted above—not some exotic or vaguely defined crime.

Collusion is defined as a “secret agreement between two or more persons for a fraudulent or deceitful purpose.” Roget’s Thesaurus and Bernstein’s Usage, two noted English-language authorities, refer to collusion only generally as deception. But that’s the stuff of civil adultery cases.

Conspiracy is defined in legal texts as two or more people agreeing to commit a criminal act when there is an overt act in furtherance of that agreement, not necessarily completion of the crime envisioned. How might that definition apply to Trump Jr., the people who accompanied him to the meeting, and other Trump supporting actors? If the Russians were guilty of conspiring to commit specific crimes, would Trump aides and attendees also be guilty of any offenses?

A recent Politico survey of law professors offered a list of crimes that might be prosecuted using certain facts that have already been made public about Russia’s involvement in the 2016 election, including violations of election and campaign-finance laws; aiding foreign intelligence activities; committing cybercrime as defined under the Computer Fraud and Abuse Act; misprision of a felony; false statements to government officials; as well as false filings, wire fraud, and perjury.

I am reminded of the notorious 1966 case I tried and retried, which the U.S. Supreme Court ultimately upheld, that is relevant to the present debate about collusion and conspiracy. In U.S. v. Lester, et.al., the government indicted three police officials, two gambling operators, and a lawyer under civil rights law (18 USC 242) for depriving citizens of their civil rights when acting under “color of law,” as only police officers and other government officials may do. The case involved a conspiracy to falsely arrest and disgrace George Ratterman, a former football star running a political campaign to clean up Newport, Kentucky, then described as a corrupt “sin city.”

The first trial ended in a hung jury. When my team retried it, we convicted the lawyer and one of the gambling characters. The jury acquitted the other casino operator (later convicted of another crime) and the three policemen. The convicted defendants appealed the case on the theory that the two who were convicted weren’t and couldn’t be acting under color of law—that could only be the three acquitted policemen. It was an interesting theory to test.

In 1966, the federal appellate court upheld the conviction, commenting that the evidence was sufficient to convict all six. The Sixth Circuit Court of Appeals ruled that the two appellants were guilty of aiding and abetting the three police officers. The two convicted defendants could be guilty of aiding and abetting a conspiracy, even if they could not commit the substantive civil rights offense, which was the object of the conspiracy.

The appellate court ruled that under 18 USC 2 (a law that is still in force today), whoever “aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.” If he “causes an act to be done by him or another,” that would be an offense against the United States. Ignorance of the law cannot be used as a defense in a courtroom.

The appeals court judges found that “even though a defendant was incompetent to commit the offense as principal by reason of not being of a particular age, sex, condition, or class, he may, nevertheless, be punished as a procurer or abettor.”

Could this precedent apply to the acts of Trump Jr., Jared Kushner, Paul Manafort, and any others regarding their behavior during and after the meeting with the Russians? If the Russians violated any of the laws Politico noted, might these others have aided and abetted them? This question is sure to be investigated by Robert Mueller, the special counsel. The body of law on aiding and abetting is venerable, and the court cited modern applications as well cases dating back centuries. The current controversy could be the latest application of the Lester case ruling, depending on what else Mueller finds during the course of his investigations.

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