We Asked an Expert if Trump's Russia Scandal Could Lead to Prosecution

On Monday night, the Trump administration lost a staffer to scandal for the first time when Michael Flynn resigned as national security advisor. The former general has not been charged with any crimes, but he did lie to (or at least mislead) Vice President Mike Pence about conversations he had with the Russian ambassador about sanctions against Vladimir Putin's government. Besides the not telling the truth part—reportedly the reason he was sacked—there are questions about whether Flynn conducted illegal diplomacy when he talked to the ambassador, since the call in question occurred before Donald Trump became president.

Members of Congress from both parties were already making noise about investigating Flynn's ties to Russia—as well as Russian interference in the election—when, less than 24 hours later, multiple prominent outlets reported that people in Trump's orbit met repeatedly with Russian intelligence officials before the election. According to the New York Times, some of America's spies are, well, spooked that around the same time Trump's people had those contacts with Russian spies and government officials, the candidate publicly praised Putin.

Tom Clancy–style theorizing about ties between Russia and Donald Trump have been a national parlor game since at least July. That's when critical reports about former Trump campaign manager Paul Manafort's pro-Russia dealings in eastern Europe raised new questions about Trump's curiously Putin-friendly foreign policy. A widely circulated dossier has since alleged all kinds of actually unbelievable stuff, like Trump being filmed by Russian intelligence while watching prostitutes pee on a hotel bed where Barack Obama once slept. But the news that Trump's people were allegedly speaking to Russians connected to a state intelligence agency significantly raises the stakes for an administration that has been facing calls for criminal prosecution and impeachment from day one.

Now that members of Congress are throwing words like "treason" around and tabloids like the New York Daily News have taken to randomly publishing the presidential order of succession, I decided to call up Carlton F.W. Larson, an expert on constitutional law in general and treason in particular, at the University of California-Davis. We talked about whether any of the alleged communications between Team Trump and Moscow could be criminal—and what a prosecution might look like.

VICE: First of all, it's not all that unusual for candidates or their staffs to talk to foreign officials during presidential campaigns, right?
Carlton F.W. Larson: That's right. Obama speaking in Germany in 2008—that surely involved some coordination with the German government, I would think.

And there are often meetings between American presidential candidates and foreign heads of state, like the Israeli prime minister.
Exactly. Or even Trump's visit down to Mexico, I don't think there's anything problematic with that.

I guess what's unusual is that it's now being alleged that there were contacts between people in Trump's orbit—not the candidate himself—and foreign intelligence officials. Which strikes me as a somewhat bigger deal.
Yes, I think that's right. I don't know that they've specifically alleged that Trump people knew they were talking to intelligence officers. Sometimes Russians can be pretty good at this—having their intelligence officers look like people who are just sort of anybody. But knowingly talking to a Russian intelligence officer is a potentially bigger problem. And I think it also depends what you say to them, too. If it's just general chitchat, it's probably fine. I don't know that just a conversation, per se, is any problem.

And legal questions have been raised about this in the past—Richard Nixon seems to have helped scuttle the Vietnam peace talks ahead of his 1968 win, and the Reagan administration has been rumored to have had backchannel dialogue with the Iranians in 1980. The relevant law—please correct me if I'm wrong—is the Logan Act, which prohibits private citizens from messing with diplomatic relations abroad. But nothing ever really came out of those past cases criminally, right?
Nobody's ever been prosecuted successfully under the Logan Act, and it's been around since the 1790s. It comes up all the time, but it's hard to see that as a viable grounds for a prosecution.

So how could the alleged contacts between Trump people and the Russian government go from being unusual or untoward to outright criminal?
The conversation itself would have to violate some other statute. Like, you revealed American classified information. Our intelligence officers, I assume, talk to foreign intelligence officers all the time, sometimes deliberately giving them misinformation. So if Michael Flynn was talking to Russian intelligence, maybe that could be part of his job—that he's trying to get something from them. Where it crosses the line is when he would be actually revealing classified information, which would violate an independent statute against government officers doing so.

And even if we establish that we think there's reason for criminal allegations to be made against people in the government, it strikes me that it's very difficult to go from that theoretical possibility to the machinery of the federal legal apparatus taking action.
Exactly, because any of these things would be federal crimes—they wouldn't be subject to state jurisdiction. So probably the FBI would have to investigate, it would have to be referred to the Justice Department for criminal prosecution, and then the Justice Department would have to decide to go forward with it, convene a grand jury, conclude that the benefits of prosecution outweigh the risks (because you may have to disclose classified information as part of the prosecution), and then actually get a conviction from a unanimous jury in presumably DC, where these things happened.

And then you have the question: Would a Justice Department headed by Jeff Sessions want to bring these cases? And I don't know he would have any great enthusiasm for doing that.

Right. But couldn't a federal prosecutor, independently of the AG, decide to issue an indictment?
For something that significant, I think you'd have to involve the higher-ups. You just would not want regular US attorneys to have free reign to bring those kinds of cases. I mean, one thing Sessions could do is appoint a special prosecutor in order to remove this concern of taint or political involvement or things like that. I don't think he will do that.

Just because of what you know about him and his record?
Right. I mean, he seems to be sort of a full-fledged Trump guy all the way. And there's no real benefit to doing this from his perspective, unless the political heat is very, very strong. It may get there, but at the moment, it's not. And he can also say, Hey, look, if congressional committees are looking at it, maybe we can piggyback on whatever they find, but until then I'm not going to do anything.

A special prosecutor can only be appointed by the attorney general?
We no longer have the independent counsel law that we had post-Watergate, where we got Ken Starr [who investigated Bill Clinton] and all of that. Reagan people hated it when it happened to them, and Clinton hated it when it happened to him. So they were happy to get rid of it.

So to the extent there would be a special prosecutor, it would simply be the attorney general makes the appointment, and would remain free to fire the special prosecutor. That person would be an employee of the Justice Department, ultimately working for the AG.

OK, so acknowledging that the odds of prosecution are low, let's talk more about possible crimes. What is the history of people being charged with treason?
There were some treason prosecutions after World War II, in the late 40s. And there was an indictment [in 2006] of this guy Adam Gadahn, who was an American-born al Qaeda leader. I think that's the most recent federal treason indictment. They never caught him, so there's no trial on him.

But in theory treason is a capital offense that could come into play here, right?
It remains technically a capital crime. Historically, all the federal ones that have been convicted have been pardons. There's actually never been an execution for treason under the US Constitution—for federal treason.

At the state level, there were a handful during the American Revolution, and a few [after], I guess John Brown would be the most prominent example: After the Harper's Ferry raid, he was tried for treason against the State of Virginia.

So does it make sense to even be talking about treason at this point—how much bearing do anti-treason laws have on the kind of offenses we seem to be learning about here?
To be treason, it has to be aid to an enemy of the United States, and Russia isn't an enemy. To be an enemy, it has to be a nation that is essentially at open war with the United States. And we're technically at peace with Russia. Therefore, any aid to Russia can't be deemed aiding an enemy.

So it's impossible to commit an act of treason in favor of Russia, at least right now?
It'd be impossible, yeah, exactly. You could do far more generous things to Russia than have been alleged, and it wouldn't be treason. Now, it would be impeachable, I think—it would be proactive disloyalty and a high crime or misdemeanor, but it's not treason.

When it comes to treason and related crimes involving foreign governments, how much does intent matter here? It seems like some of this may have just been bumbling communications by people who weren't thinking things through rather than malice.
There is some case law on this point, but there's been disagreement about it. On the one hand, you could imagine an obvious example where someone tells you, "Go deliver this to this person," and it turns out that the person you're giving it to is a foreign agent, and [the package] is secret intelligence. But you didn't know that—you didn't know what you were delivering was intelligence, and you didn't know the person was an agent. The act of it is identical, but I think your state of mind matters. You didn't intend to commit that crime; you just didn't know what you were doing. Still, intent could be formed on the spot—I don't know you have to have had a plan ahead of time.

The last thing I wanted to ask about is the proximity to the president. None of the reports so far have directly implicated the president so much as people in his orbit. Does it matter how close to the president someone is for him to potentially be implicated? How difficult is it to draw that line of legal responsibility back to the Oval Office?
It's hard. And it would require a Justice Department that was really energetically pursuing it—and probably trying to flip people. If you think back to Watergate, people like John Dean flipped and gave all this testimony. So you would need someone who's really willing to put pressure on Michael Flynn to, say, give up Donald Trump. And, at the moment, I don't see the Justice Department doing that. That's not to say it might not happen—but it's not just going to happen organically, I don't think, unless there's like a massive leak of information. And Nixon was dumb enough to tape himself committing the crime. Trump loves the cameras, but I don't think he's recording everything he says.

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