What ousted FBI Director James Comey tells Congress could set the tone for what his predecessor, now the special counsel investigating Russian interference in the 2016 election, looks into.
“Comparisons to Watergate are way over the top,” Ron Hosko says.
But, barring any new bombshells when Comey testifies Thursday before the Senate Intelligence Committee, legal experts identify a few directions the case could go under Robert Mueller’s direction if evidence emerges of collusion between Russia and the Trump campaign.
Mueller’s probe could lead to “obstruction of justice charges and possibly form the basis for impeachment,” said Nick Akerman, who served on the teams of two special prosecutors, Archibald Cox and Leon Jaworski, during the Watergate investigation.
But Ron Hosko, a former assistant director for the FBI assigned to its Criminal Investigative Division, said he doubts it will go quite that far.
“I don’t see today individual transactions forming a broader criminal conspiracy, which is what Democrats want to see, evidence of knowing agreement,” Hosko, who served under both Mueller and Comey, told The Daily Signal.
“Comparisons to Watergate are way over the top,” Hosko added.
However, Akerman and Hosko agree that certain evidence, if uncovered, could lead to charges against people who work or worked for President Donald Trump, either during the campaign or in the administration.
One chief criticism of the congressional investigations before the Justice Department tapped Mueller is the lack of evidence of collusion between the Trump campaign and Russia to weaken Hillary Clinton politically or put Trump in the White House.
The landscape covered by Mueller’s probe includes the actions of former national security adviser Michael Flynn, the emails connected with Clinton’s campaign, and any communication between Trump campaign or transition officials and the Russians.
Here are six laws and potential charges that legal experts say could be brought:
1.) Logan Act
The “heart of the investigation” would be whether Flynn or anyone else violated the Logan Act, said Robert Ray, the independent counsel who completed an investigation of President Bill Clinton.
The law, dating to 1798, prevents unauthorized citizens from negotiating with foreign governments that are at odds with the United States.
“Between the election and inauguration, if someone was making promises about foreign policy, whether it’s the president himself or someone working for the president, it could be a crime,” said Ray, now in private practice.
This would require evidence of actual promises, deals, or negotiations.
2.) Cyber Intrusion
According to federal officials, Russia apparently hacked the emails of the Democratic National Committee or the emails of John Podesta, Clinton’s campaign chairman, correspondence that ended up on the WikiLeaks site.
If evidence emerges that Trump campaign workers were involved in assisting the Russians, it could tie them to a violation of a statute called Fraud and Related Activity in Connection with Computers, legal experts said.
“This could be a cyber intrusion violation,” said Hosko, now president of the Law Enforcement Legal Defense Fund. “There are laws against aiding and abetting hacking.”
3.) Espionage Act
The Espionage Act may apply on two fronts: anonymous government employees’ leaking classified information to damage Trump, or Trump’s talking to Russian officials during a much-publicized Oval Office meeting.
The FBI recently arrested 25-year-old National Security Agency contractor Reality Winner and charged her with illegally mailing intelligence information about Russian interference with the election to a news organization.
Considering other aspects of the probe seem to lack actual evidence, leaks by government employees might be the most direct route to prosecution, said Hans von Spakovsky, a senior legal fellow at The Heritage Foundation.
“Leaks of classified material is a federal crime,” von Spakovsky, a former Justice Department lawyer, told The Daily Signal, adding:
But so far in the so-called collusion investigation, there is no evidence of any violation of any federal law that I know of. Similarly, the big to-do over Kushner talking to the Russian ambassador—that is perfectly legitimate and not any violation of federal law. Mueller can certainly investigate leaks.
The Heritage legal expert was referring to Jared Kushner, Trump’s son-in-law and one of his top White House aides.
In May, the Trump administration fended off press reports about Trump’s Oval Office meeting with Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergey Kislyak, in which sources claimed Trump disclosed intelligence about the Islamic State and aviation safety issues.
A procedure exists for presidents to declassify information, Akerman said, and this action could be prosecutable.
“It could have been a plot beforehand, [such as] ‘I’ll tell you in the light of day and then no one will think I’m in cahoots with you guys,’” said Akerman, now in private practice.
Others point out that the president has the power to decide what is and isn’t classified.
4.) Obstruction of Justice
Comey, during his testimony on Capitol Hill, reportedly will not accuse Trump of trying to obstruct the FBI’s investigation of Flynn.
A Comey memo reportedly noted that after dinner at the White House, Trump told him in a February meeting: “I hope you can see your way clear to letting this go, to letting Flynn go.”
It would be tough to make Trump’s stating this in a meeting with Comey the basis of an obstruction charge, Hosko said. But it could give Mueller reason to seek all records of communications or behind-the-scenes actions by Trump regarding the FBI’s Flynn probe.
“The president could have been expressing his wishful thinking to Comey,” Hosko said. “If his true intent was to decapitate an investigation, it would be a more troubling issue.”
Under a “unitary executive” view of the law, it would be difficult to charge a president for seeking to shut down an investigation within the executive branch, Ray said.
“It might be constitutional grounds for impeachment, but it’s not obstruction of justice,” he told The Daily Signal.
5.) Foreign Agent Registration Act
Rep. Elijah Cummings, D-Md., the top Democrat on the House Oversight and Government Affairs Committee, has argued that Flynn, a retired Army general, lied on his national security disclosure forms about past work with Russia.
Flynn allegedly worked for entities with ties to Russian and Turkish governments without disclosing the information, as required under the Foreign Agent Registration Act.
Trump ousted Flynn, a campaign adviser, as his national security adviser after three weeks because Flynn had one or more interactions with the Russian ambassador before Trump’s inauguration and then misinformed Vice President Mike Pence about it.
This could be a serious offense, Ray said.
“There could be a charge of making false statements with regard to vetting and financial disclosure forms,” Ray said.
“When you get a security clearance, they instill the fear of God in you to be honest and provide information about contacts; that’s not something you just forget,” Akerman told The Daily Signal.
6.) Campaign Finance Law
The investigation could uncover a campaign finance scandal, wrote Bob Bauer, former White House counsel for President Barack Obama.
“The law prohibits foreign nationals from providing ‘anything of value … in connection with’ an election,” Bauer wrote. “The hacking of the Podesta emails, which were then transmitted to WikiLeaks for posting, clearly had value, and its connection to the election is not disputed.”
Such an in-kind contribution case is “theoretically possible, but would be difficult to prove,” Ray said.
“There is no hint of any Russian money being involved. Trump’s campaign was largely self-funded,” the former assistant FBI director said. “You did have peripheral players such as Michael Flynn, [former Trump campaign manager] Paul Manafort, and [informal Trump adviser] Roger Stone, who supposedly made money from Russians. But you would have to prove that money ended up in the campaign.”