by Jonathan Turley, opinion contributor · November 6, 2017
In “A Man for All Seasons,” Sir Thomas More was accused by his son-in-law William Roper of putting the law before morality. Roper declared he would “cut down every law in England” to “get after the devil.” More warned his son-in-law, “When the last law was down, and the devil turned around on you, where would you hide, Roper, the laws all being flat?”
Similar winds are blowing in the Beltway. For months, President Trump’s critics have bent and twisted criminal provisions to accuse him of a “plethora” of crimes. Little thought has been given to the implications of radically expanding the meaning of crimes such as obstruction, election fraud or conspiracy. Now, experts are scrambling to find shelter in the narrowest of criminal definitions as Democratic figures are implicated in special counsel Robert Mueller’s investigation as well as new campaign allegations by a former party leader.
Just as I have been skeptical of theories of Trump’s criminality, I am equally skeptical of such pronouncements of Hillary Clinton’s crimes based on current evidence. However, Trump would need to look no further than the interpretations of many experts to support calls for prosecution. It was recently confirmed that Clinton’s campaign paid a foreign national to dig up dirt against Trump from other foreign nationals, including Russian and foreign intelligence sources. Both Trump and Clinton have justified their actions as standard “opposition research.” Moreover, both campaigns insist the public had a right to know of evidence of illegality held by such sources.
Experts have spent months shoehorning Trump into ill-fitting criminal provisions. Some have argued that he can be charged under Section 371, which prohibits conspiracies to defraud the United States “in any manner or for any purpose.” Former federal prosecutor Randall Eliason has argued, “Running a free and fair presidential election is a core lawful function of the federal government. Any agreement to secretly and dishonestly attempt to interfere with a federal election would fall squarely within Section 371’s prohibition on conspiracies to defraud the United States.”
Well, if seeking dirt from the Russians on Clinton is now a federal crime, how about seeking dirt from Russian sources against Trump? If that does not “fall squarely with” the criminal code, how about rigging the primary, as alleged last week by former Democratic National Committee head Donna Brazile? In her new book, she contends Clinton essentially bought the DNC by assuming responsibility for its crippling debt in exchange for controlling critical elements of the organization before the primary. Brazile was fired by CNN for unethical conduct in leaking debate questions to Clinton, then lying about it to the media. However, even Brazile balked at what she found at the DNC.
Brazile says she discovered an August 2015 agreement between the national committee and the Clinton campaign that the latter be allowed to “control the party’s finances, strategy, and all the money raised.” Brazile said the deal was legal “but it sure looked unethical” but still gave the Clinton campaign “control of the party before the voters had decided which one they wanted to lead.” The former DNC head now agrees the deal “compromised the party’s integrity.”
If Clinton gained critical control over the primary in a secret deal, how was the election “free and fair” for the purposes of Section 371? When the subject was Trump, defense counsel Tor Ekeland insisted that the Trump could be charged on “a whole plethora of areas of potential criminal liability.” When asked if Trump could be prosecuted even if he did not encourage the hacking of emails, but simply encouraged the release of information, Ekeland reportedly responded with an expression of profane glee and said that mere encouragement is potentially enough. Such abandon is characteristic of the “anything goes when it comes to Trump” approach to legal interpretation.
Yet again, nothing but barriers are seen to investigating Clinton, even after her belated acknowledgement of funding the dossier after it was confirmed by various newspapers for weeks. Clinton defended her actions by claiming, “You know, from my perspective, it didn’t come out before the election, as we all know.” Some have balked at that spin. Christopher Steele, the former English spy behind the dossier, was in Washington in September 2016 peddling the allegations to a wide array of reporters. The same information from the dossier began to appear in the media. Moreover, the Clinton campaign, including communications director Jennifer Palmieri, pushed the story.
Many Trump critics have insisted the pattern of concealing or lying about Russian connections is an obvious basis for investigation. However, Clinton never fessed up to paying for the dossier over months of coverage and speculation. In addition, journalists (including two New York Times reporters) have accused Clinton lawyer Marc Elias of repeatedly lying in denying any connection between the dossier and the campaign. Elias later sat next to the Clinton campaign chairman, John Podesta, who denied any connection with the campaign in a formal interview with congressional investigators. It is a crime to knowingly give false information to federal investigators or to Congress.
Other criminal allegations against Clinton do not require linguistic gymnastics to fit the criminal code. Critics have charged that huge amounts of money were exchanged through the Clinton Foundation or speaking fees for Bill Clinton, including the $500,000 given to him by Russians before the State Department approved the controversial Uranium One deal under Secretary Hillary Clinton. While there are obvious defenses for Clinton, the allegation would fit a classic “pay to play” scheme. If true, Illinois Gov. Rod Blagojevich was sent to jail for far less.
Does this mean Clinton or her aides committed crimes? No. The point is only that a sharp disconnect exists between the interpretive approaches given to allegations about Trump as opposed to those about Clinton. A presumption of criminality exists for one, and for the other, a virtual immunity. A concerted effort is being made to get the law to fit the conduct, at considerable risk to our legal system.
As Sir Thomas More observed, “This country is planted thick with laws, from coast to coast.” The blind rage exhibited in legal analysis will leave us in no better of a position than the hapless William Roper when we have need of these laws again. Perhaps with the latest allegations, More’s words will now resonate with some in Washington. As he said, “If you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake!”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.