Now that Trump’s former national security advisor Michael Flynn has pled guilty to a felony, people are wondering what it means.
The big ticket conversation item right now is that Trump tried to influence a foreign government before he took office and was a private citizen. This would be a violation of the Logan Act. The Logan Act, however, is a 200 year old criminal law and has never been used to prosecute or convict anyone in its entire history. In fact only two people have even seen charges under the Logan Act, and neither were convicted.
So if the fact that Trump was conspiring with Flynn and others to influence Russia to take certain foreign policy actions before the election is not enough to go the distance, what else is there?
The second, stronger, but still fairly weak theory is that Trump and his team conspired with the Russian government to steal electronic data from Democrats. This would be a computer crime. But the record indicates that Trump and his flunkies only made contact with the Russians on this specific topic after the data was already stolen. So without more information, it does not look like Trump asked Russia to steal the data (before the fact) or planned or conspired to steal it.
A sub-category of potential crimes in this area is a violation of campaign finance law. It is illegal for a U.S. political candidate to take something of value from a foreign government during a campaign. Something of value usually equates to campaign money or other assistance. There’s evidence that Russia spent a lot of money on social media ads that directly benefited Trump. There was also the famous meeting between one of Putin’s lawyers and Trump’s top campaign officials in Trump Tower. And of course, Trump’s campaign directly benefited from all of the leaked Democrat emails. So this could go somewhere, but the question would be how much involvement did Trump’s team have with the actions of the Russians?
Trump’s obvious defense would be, “I can’t tell the Russians how to spend their money, that’s up to them and I didn’t tell them how to do it during the campaign.” There is some evidence suggesting he did try to tell the Russians how to help him during the campaign, but proving it beyond a reasonable doubt to get a criminal conviction, with what we know right now, would be difficult.
The third option goes back to Paul Manafort, who was indicted for, essentially, corruption and fraud by taking millions from a foreign government and laundering the money and taking a cut. This could be why Trump has absolutely refused to release his tax returns–because they could show that he is on Russia’s payroll. If it is the case that Trump was also on the take, and worked with Paul to take millions from the Russians in exchange for influence and favorable policy decisions, this would be a very serious criminal case of corruption, fraud, money laundering, and perhaps even treason against the president.
The third option would also go far to explain why Flynn, and Papadopoulos before him, intentionally lied to the FBI–a felony–about the campaign’s contacts with the Russians. If Flynn and Papadopoulos knew that Trump and his team were taking millions from the Russians in exchange for helping the Russians (and it looks like Flynn was also taking money from the Russians), then any action taken on behalf or in coordination with Russia is clear evidence of serious criminal wrongdoing. And the FBI would be the last people you would want to talk to about that.
If, on the other hand, we were still discussing potential Logan Act violations, it seems like the Trump Team, given their willingness to be loud mouths, would have basically said, “Yeah so what we talked to the Russians, we were about to take over the White House and we didn’t want Obama’s stupid decisions to get us off to a bad start. So of course we talked to the Russians during the transition. Of course we were talking to them a few weeks before we took office. We were going to be in charge, so why wouldn’t we do that?”
This is probably why the Logan Act, while still good law, has never been effectively used in over 200 years and is doubtful to be the main dish in the Mueller investigation. It’s all about the money at this point.