But He Should Have Had Counsel!

Vincent J. Curtis

18 July 2017

Among the many imbecilic comments made about Don Jr. meeting with a Russian to get dirt on Hillary is the assertion that someone else should have gone in his place.  [I have just finished reading a piece by Conrad Black and loved his use of the word ‘imbecilic’].

Specifically, the Monday morning quarterbacks say that ‘counsel’ should have gone in his stead, or some lower level staffer; or he should have brought ‘counsel’ with him.  I would like to enquire: why?  What makes a lawyer, of all people, so damned special?  What gives a lawyer clean hands?

Recall that Don Jr was offered incriminating evidence on Hillary Clinton and the DNC by someone he knew and trusted.  The offer came out of left field, and was described in a way guaranteed to raise one's curiosity: 'what the hell have they got??' must have run through his mind.  The information was described as a form of leak from some high official in the Russian government.  If Don Jr had sent someone else to a meeting that he said he, Kushner, and Manafort would attend, the purveyors of the information might wonder what was up – and not hand over the information.

The criticism that some junior staffer should have been sent look at the information first seems to forget that there were no junior staffers in the Trump campaign at that time.  The campaign consisted of Trump himself, his immediate family, a few of his business staff and acquaintances, and his campaign manager.  The Trump campaign was run on a shoestring, with Trump having spent some $50 million of his own money to secure the nomination by June 3^rd, 2016.  Who was Don Jr. going to send?

So, lacking junior staffers, what about sending ‘counsel’ in place of Don Jr.  That would be Don McGahn, who was busy doing work for Don Jr.’s dad.  What is it about being ‘counsel’ that makes one’s doings dirt-free?  What could ‘counsel’ do except take the information and pass it on?  ‘Counsel’ would be acting as an agent of Don Jr. in that case, and he would be in no position to question what was given him as Don Jr. actually did, because ‘counsel’ could never fully understand what Don Jr. was expecting.  He could not review the dossier then and there and reject it immediately, as Don Jr. did.

None of the Monday morning quarterbacking proves superior to the actual events insofar as protection from “Russian collusion” is concerned, and still of having a look at what was offered.

Now, let’s suppose that at the meeting the Russian lawyer provided Don Jr. with a thumb drive containing Hillary Clinton’s 30,000 deleted emails.  These emails would have been obtained by Russian hacking into Hillary’s server.  How would this change the picture?

At $10, does the price of a thumb drive constitute a ‘thing of value’ to the Trump campaign, assuming it’s acceptance by Don Jr. constituted a donation to his father’s campaign?  I think there is enough reasonable doubt that the thumb drive per se was a thing of value, being a small thing of general utility; or that Don Jr.’s accepting it (and not being sure of what was actually on it when he did) amounted to a donation to the campaign from a foreign source.

The data on our theoretical thumb drive which are Hillary’s 30,000 deleted emails is itself of no monetary value, since these are merely arrangements of magnetic particles on an otherwise $10 thumb drive.  The data may be priceless politically, but of $10 monetary value as a thumb drive.

Would the acceptance of the thumb drive constitute “collusion with Russia?”  Well, collusion is a secret cooperation in order to cheat or deceive others, and a thumb drive containing Hillary’s authentic 30,000 deleted emails is not deception because they are authentic.  It is not clear that ‘cooperation’ was involved either because there was no expectation of what Trump would do with it.  Getting a favorable hearing about repealing the Magnitsky Act in return for handing over the thumb drive still doesn’t amount to ‘cooperation,’ or even a quid pro quo since listening is not really a quid in return for the quo. 

And it would not matter whether a junior staffer, or ‘counsel’ or Don Jr in the presence of ‘counsel’ accepted such a thing.  The Trump campaign would at that point be in possession of political dynamite.  Trump could hand them over to the FBI in the expectation that James Comey would do the right thing with them, or he could publish them himself for all to see, and do so quite legally.  If the New York Times can legally publish the Pentagon Papers, Trump could legally publish Hillary’s 30,000 deleted emails, top secret information and all.

When you start looking at concrete cases, the wisdom of the Monday morning quarterbacks falls apart.  Don Jr. did perfectly well in the circumstances, and it's hard to see how some other arrangement could have worked at getting a look at the information.  You also get a clearer picture of what “collusion with Russia” would look like – a coordinated and knowing campaign of deception between the Russian government and the Trump campaign to make Hillary look worse than she already did - but falsely worse.

The case for “collusion with Russia” against the Trump campaign was threadbare and entirely lacking in concrete evidence well before the Don Jr. meeting was revealed.  The analysis of this episode ought to lead one to conclude that “collusion with Russia” never took place by the Trump campaign, given what it would have to look like and entail.

Hillary and the Democrats were not cheated of the presidency of the United States, which is what is meant by “collusion” in this case.  Hillary and the Democrats were rejected by the American people.

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