Fordham Law School Prof. Jed Shugerman: "Collusion Is More Of A Political Word Than A Legal Word"


Donald Trump Jr.’s release of his Russia-related email exchange reignited a legal debate about whether members of the Trump campaign engaged in unlawful activity. Former White House Counsel Bob Bauer and Jed Shugerman of Fordham Law School join Judy Woodruff to offer different perspectives on the legal questions surrounding the controversy.


JUDY WOODRUFF: Now back to the controversies swirling around Donald Trump Jr. and the president’s top campaign aides.

The e-mail exchange published by Donald Trump Jr. on Tuesday reignited a legal debate about whether members of the Trump campaign engaged in unlawful activity.

We get two perspectives now, from Bob Bauer. He served as White House counsel to President Obama from 2009 to 2011. He is now a lawyer in private practice in Washington. And Jed Shugerman, He’s a professor at Fordham University Law School.

Gentlemen, we thank you both for being with us.

Bob Bauer, to you first.

We know the president’s son was told that the Russian government had incriminating information on Hillary Clinton that it wanted to share with him. Did he break a law by pursuing that?

BOB BAUER, Former White House Counsel: In my view, we have some evidence. We don’t have all the evidence. I would suspect the congressional investigating committee and the special counsel will continue to dig into questions raised by the facts disclosed by The New York Times and by Donald Trump Jr. himself.

But this is highly suggestive of a potential violation of the law on two counts. Number one, it demonstrates that the campaign as a whole had the intent to court support, receive support, solicit support from a foreign national source, in this case, the Russia government.

Second, in my view, the meeting itself could constitute illegal solicitation of support from a foreign national under campaign finance law. So, it both has broad legal significance, and on that one specific issue of liability, has a more concrete significance.

JUDY WOODRUFF: So, you’re tying it to campaign finance, is that right?

BOB BAUER: Yes. I’m talking here about a statute that has been on the books for many years that Congress tightened in 2002 that prohibits receiving and soliciting contributions from a foreign national or providing the foreign national with substantial assistance in trying to influence a U.S. election.

JUDY WOODRUFF: Jed Shugerman, listening to this, and I know you have been looking at the laws with regard to this today, does this sound like something that fits under that legal definition?

JED SHUGERMAN, Fordham University Law School: Yes, I have been looking at this quite a bit and I have been reading Bob’s work. And Bob is — generally, he’s a terrific expert on this.

I think I disagree with him and how far to apply campaign finance law. I’m very sympathetic to his perspective here. However, I think we’re getting into some dangerous territory with applying federal election law too broadly at this stage.

News keeps breaking every day, so I’m just saying, what we know now, to argue that this meeting itself is a violation of the campaign finance law raises a couple of questions. First of all, it raises the danger of applying and criminalizing contacts between anyone in a campaign with a foreign national.

Let me give you a hypothetical. Imagine if there was a Web site that published what purported to be the birth certificate of President Obama from Kenya, and an Obama staffer went and met with Kenyan nationals to find out about the veracity of that document.

Under this interpretation, that would still be a thing of value, but would we criminalize the Obama campaign for checking? And, similarly, would we say of the Romney campaign, you can’t do opposition research by investigating?


JED SHUGERMAN: Yes, go ahead.

JUDY WOODRUFF: I was just going to say, let me just stop you there on that point.

What about that, Bob Bauer, that there’s a danger here in making this cover any kind of information that is shared with a campaign by a foreign entity?

BOB BAUER: Well, that’s not the case at all here. We’re not talking about a casual conversation with some information that the campaign is looking for it sort of acquires by talking to a foreign national.

We’re talking about an operational link between a foreign government and a campaign, one in which the foreign government is stating its intention to provide ongoing support, dispatches one of its emissaries, if we’re to understand the facts as so far presented in the news, dispatches one of its emissaries from Moscow to Washington, D.C.

And on top of all that, not only does the campaign indicate that it’s anxious for the help, but, as you recall, Donald Trump Jr. even suggests in one of his e-mails that he would like to discuss timing, that if the information is as good as advertised, he would like to see it released later in the summer.

The campaign finance laws clearly distinguish between the kind of speech that I think that Professor Shugerman is legitimately concerned about from this kind of operational relationship by a strong supporter for a campaign engaged in very specific activities on its behalf.

JUDY WOODRUFF: Jed Shugerman, it is the case that the e-mail to Donald Trump Jr. said the Russian government wants to help your campaign.

JED SHUGERMAN: All of this is indicative or suggestive of what we might find out later.

I think if we carefully read the e-mails, I think it’s hard to make the leap that this is like a coordination. There’s indications there. I understand where Bob Bauer is coming from.

So, I think we have to be careful, though, because if you read the e-mail from a little bit of perspective of how could this be applied in the future and can we have line-drawing here, it’s hard to see where this e-mail doesn’t lead to some effect of applying this to any kind of contact between a government …

JUDY WOODRUFF: Let me now ask both of you.

And I will come to you, Jed Shugerman first.

The word collusion, colluding has been thrown around a lot in the last few weeks about whether the Trump campaign was colluding with Russian officials. Is there some legal connection there? Is that an issue?

JED SHUGERMAN: Well, the word collusion is more of a political word than a legal word. There is no statute against collusion.

And — but I think the word we might turn to in the law is conspiracy. This is where we’re headed. I think there is a lot of other information that is coming out day by day that points to this conspiracy.

And we may have conspiracy. I think what we’re getting closer towards is a violation of 1986 law of computer hacking, because I think, if you look at the timing, there are just too many coincidences about what the Trump campaign was doing before and after this June 3 e-mail about President Trump himself.

I just — my point here is, I think we need to be careful in analyzing each step.


JED SHUGERMAN: I think there is evidence that’s pointing towards crimes, but I think we need to be careful when we make interpretations of these statutes.

JUDY WOODRUFF: Well, we certainly want to be careful here. And we know we’re speculating, but we do think it’s important to ask these questions.

Bob Bauer, just quickly on the conspiracy question?

BOB BAUER: Well, I think there is a basis here.

And I don’t disagree with Professor Shugerman. This is going to be an ongoing investigation. This is not the only evidence that will be taken into account. And certainly, if, in fact, there is apparently a violation of the campaign finance laws, and the evidence is beginning to point in that direction, then, yes, the prosecutors could certainly develop a conspiracy charge or an aiding and abetting charge based on that.

If I could just add one more point, this is not a statute that is subject to the same free speech considerations that Professor Shugerman outlines that apply in the domestic U.S. context.

Today, for example, it was very clear from the testimony of FBI director nominee Chris Wray, who was asked about this, that, in his view, this sort of communication between the Russian government and a campaign is a national security matter.

And he said any meeting like that shouldn’t have been taken unless the campaign had consulted with what he called its legal advisers. So, I think it was clear from the FBI director’s remarks here this is a national security issue, the free speech considerations are different, and the implications are legal.

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