An Examination of Trump’s Legal Defense in the Russian Probe

The Mueller investigation is probably looking into three issues with regards to Donald Trump and his associates.

  1. Whether or not the campaign colluded with Russia to influence the 2016 election,
  2. Whether or not Trump attempted to obstruct justice with regards to the investigation, and
  3. Whether or not Trump or his associates engaged in other criminal activity that might, or might not have any relation to Russia.

Number three on that list was evidenced by the indictment of Paul Manafort on charges of money laundering. Today we learned that the special counsel has subpoenaed data on accounts at Deutsche Bank held by Trump and his family. That could lead to evidence of questionable business transactions in general, but is more likely related to the potential for charges of collusion with Russia.

The German bank is one of the few major lenders that has lent large amounts to Trump in the past decade. A string of bankruptcies at his hotel and casino businesses during the 1990s made most of Wall Street wary of extending him credit.

A U.S. official with knowledge of Mueller’s probe said one reason for the subpoenas was to find out whether Deutsche Bank may have sold some of Trump’s mortgage or other loans to Russian state development bank VEB or other Russian banks that now are under U.S. and European Union sanctions.

Holding such debt, particularly if some of it was or is coming due, could potentially give Russian banks some leverage over Trump, especially if they are state-owned, said a second U.S. official familiar with Russian intelligence methods.

That kind of move by Mueller should be a major cause of concern for Trump and his family. But it is also a reminder that there is probably a lot more to this probe than has been made public so far.

With that caveat in mind, I have found the defenses being lined up so far by Trump’s lawyers and supporters to be incredibly weak. As we saw yesterday, the president’s legal team is attempting to make the case that he can’t be charged with obstruction of justice. Yesterday, Alan Dershowitz made the same case on Fox & Friends, even though the current attorney general argued otherwise during the impeachment trail of Bill Clinton.

Where Sessions argued in Clinton’s case that the president had the responsibility to “defend the law,” Dowd argued that the president’s oversight of law enforcement makes it impossible for anyone in the office to obstruct it in the first place.

I’m confident that in the not-too-distant future we’ll be hearing Sessions split hairs as to why his previous argument doesn’t apply to Trump.

On the issue of whether or not the Trump campaign colluded with Putin, the first line of defense seems to be to maintain questions about whether or not the Russians actually attempted to interfere with the election. The president has gone back and forth on that one, depending on the circumstances. Next, Trump and his cronies deny any collusion, but jump almost immediately to the idea that even if the campaign colluded, it’s not a crime. Here is Jeffrey Toobin on that:

In several conversations with me, Sekulow [Trump’s lawyer] emphasized that collusion between the Trump campaign and Russia, even if it did take place, wouldn’t be illegal. “For something to be a crime, there has to be a statute that you claim is being violated,” Sekulow told me. “There is not a statute that refers to criminal collusion. There is no crime of collusion.”

The final argument was raised initially, but these days comes more in the form of an allusion rather than an outright statement. It has been suggested that even if Russia attempted to interfere with the election, they were not successful. Here is John Brabende making that case at Fox News back in May.

Did the Russians try to interfere with last November’s Presidential election?  Without a doubt.  Were there conversations between Russian representatives and members of the Trump campaign team? Very likely.  Did the Russians succeed in altering the outcome of the election in any way, or was the Trump campaign complicit in their attempts?  Absolutely not…

The Democrats, along with too many in the news media, keep obsessing on creating a nexus between the Trump campaign and Russian operatives.  This is rooted in their relentless desire to prove that Trump won through some nefarious means.  How else do you explain so many blue collar Democrats in states like Pennsylvania, Michigan, Ohio, and Wisconsin voting for Trump?  With mass hypnosis ruled out, the Russians have been selected as the most plausible culprit to sell to the American people.

One thing you may notice about all of these defenses is that they don’t seem to carry much depth when it comes to legal arguments. I would suggest that is because they haven’t been crafted for use in the court room. There are two targets for these arguments. The most important is Trump’s base of support. He needs them to stick with him to keep the other target in line: congressional Republicans.

The prospect of Mueller filling charges against Trump in court is an open question in terms of its constitutionality. Since, as most pundits have pointed out, impeachment is more of a political than a legal process, that possibility is minimal as long as Republicans maintain their congressional majorities. To keep them in line, Trump and his lawyers know that they need to maintain the support of the Republican base of voters.

Along with the kind of fog Mike Allen suggests that Trump is using with his attempts to discredit the prosecutor, the FBI, the media and his critics, these defenses are designed to avoid the possibility of impeachment rather than win the day in a court of law.

While instructive, this is why I don’t find the kinds of legal arguments laid out by people like Jeffrey Toobin to be definitive. This case is more likely to play out in the court of public opinion, rather than an actual courtroom. It is doubtful that any charges will sway Trump’s base of support, and thereby impact Congressional Republicans. But we also don’t know the extent of the case that Mueller might eventually bring. He’s running a pretty tight ship so far and we won’t know what he’s got until he’s done. That is very likely to hit right about the same time as the 2018 midterm elections. At that point, it could be a whole new ballgame.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.