Friday, April 7, 2017

Lawfare: Trump's Collusion with Russia

Jordan Brunner, et al argue that Donald Trump absolutely colluded with Russia's hack of the election  on

There is, in fact, copious evidence of at least tacit collaboration between the Russians and the Trump campaign, collaboration in which Trump personally participated on multiple occasions. But we have collectively discounted this cooperation for two related, and quite perverse, reasons: It was overt and public and it was legal. The consequence has been that we largely ignore it in discussing the matter.

Collusion, in this context anyway, is not a legal term. For legal purposes, it matters if Trump or his people conspired with Russian agents to violate the Computer Fraud and Abuse Act or some other criminal law; it matters if they acted as agents of a foreign power within the meaning of FISA or as agents of a foreign principal within the meaning of FARA.
When people say there is no evidence of collusion, they mean, we suppose, that there is no evidence of covert or illegal collaboration with the criminal activity undertaken in the course of this foreign intelligence operation against the United States.
But that is rather a different matter than acquitting Trump and his campaign of collaborating with the Russians. It ignores, after all, the overt and perfectly legal collaboration they plainly engaged in with what they knew to be an ongoing foreign intelligence operation against their country. We don’t need an investigation to show that this overt activity took place, for the Trumpists were caught in flagrante delicto throughout the entire campaign; indeed, caught is even the wrong word here. The cooperation was an open and public feature of the campaign.
It included open encouragement of the Russians to hack Democratic targets; denial that they had done so; encouragement of Wikileaks, which was publicly known to be effectively a publishing arm of the Russian operation, in publishing the fruits of the hacks; and publicly trumpeting the contents of stolen emails.
Most notoriously, on July 27, Trump stated during a news conference: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” 
In other words, after the Russian government had already been publicly associated with the hack, Trump urged it to conduct further hacking. One of the present authors wrote as much at the time, arguing that Trump had just “call[ed] on a foreign intelligence service to engage in operations against the United States.”
On at least one occasion, Trump also publicly celebrated a pending Wikileaks release of further hacked information, that is, the release of stolen material by an organization whose connections to Russian intelligence were hardly a secret. Giving a speech in Miami on November 2, he declared: “So today, I guess WikiLeaks, it sounds like, is going to be dropping some more, and if we met tomorrow, I'll tell you about it tomorrow, but one beauty that's been caught was, and this was just recently, newly released, where they say having a dump. We're having a dump of all of those e-mails. . . ."
He also declared multiple times that he “love[d] Wikileaks” or “love[d] reading those Wikileaks”—that is, knowing that a foreign intelligence operation had taken place against his opponent and the Wikileaks was publishing the fruits, he publicly celebrated the publisher. Three days before the election, he riffed at a campaign rally: “You know, as I was getting off the plane, they were just announcing new Wikileaks! And I wanted to stay there but I didn’t want to keep you waiting. I didn’t want to keep you waiting. Let me run back onto the plane and find out!”
Included below in the Appendix to this article is a rough and incomplete timeline of both Trump’s statements obscuring Russia’s intervention and his appeals to Wikileaks material—that is, material stolen by the Russians and published by an organization publicly identified as fronting for them—throughout the campaign.
All of which is what Clint Watts was talking about last week when he told the Senate Intelligence Committee that: “part of the reason active measures have worked in this U.S. election is because the commander-in-chief has used Russian active measures, at times, against his opponents.”
Watts’s comments got a lot of attention from shocked commentators. But they are really an emperor-has-no-clothes statement of the obvious. They are another way of saying that the Russian active measures worked because Trump and his associates were collaborating with the operation. That they were doing so publicly and lawfully does not make their activity any less collaboration—just, perhaps, more honest and open. And it doesn't make it less bad.
It remains an important question whether anyone in the Trump camp colluded covertly or illegally or whether they coordinated with the Russian operation. These questions are important because they go to the question of whether any laws were violated and whether anyone in the Trump orbit may be compromised by Russian intelligence.
But there simply is no question that the Trump campaign collaborated knowingly with a foreign power during this operation, or that Trump himself was the colluder in chief.

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