Collusion Between Trump and the Russians? No Crime Unless It Involved Hacking

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So what if there was collusion between the Trump campaign and the Russian government?  Is that a crime, as everyone seems to assume? According to Harvard Law Professor Alan Dershowitz, “collusion” between the Russian government and President Trump and/or his campaign is not a crime, unless the collusion involved the act of hacking itself.  Pretty startling, right?  And based on the public record as it now stands, there is no evidence of collusion between the campaign and the Russians involving the act of hacking.  No aiding or abetting by the Trump campaign in the hack attacks.  Without other evidence, there’s simply no crime here.  Let’s look a little further at Professor Dershowitz’s analysis.

General Collusion Between the Trump Campaign and the Russian Government is Not a Crime

Much of the press, and certainly almost all the Democrats on Capital Hill, assume that general coordination between the Trump campaign and the Russian government to get Trump elected is a crime.  They also maintain that coordinating the release of information to WikiLeaks is a crime.

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But as Professor Dershowitz observed, that narrative is false.  As he put it, “even if the campaign coordinated its activities with Russia, and even if Russia and the campaign said ‘wouldn’t it be better if Trump were elected,’ that’s political wrongdoing but it’s just not a crime.”

Moreover, it’s not a crime if there was coordination on the WikiLeaks dump: “Why would that be a crime?  It would be like the Washington Post publishing WikiLeaks.”

The Only “Crime” is the Incursion into the DNC Servers

The key is simply this.  The crime that occurred here, as with Watergate, is the break-in.  It’s the actual hack (if at all) of the Democratic National Committee computers.  As Dershowitz put it, “as long as the Trump administration or no individual told [the Russian government] to hack the DNC . . . that would be obviously very different.  Or gave [the hackers] information that was useful in hacking the DNC.  But [the Trump campaign] just knowing that [the Russians] hacked the DNC or taking advantage of that fact is not a crime.”

It’s really a very simple point.  The crime is the physical act of stealing the data.  Any Trump campaign involvement with respect to that act would be a crime.  But actions taken thereafter are not crimes.  And as Professor Dershowitz stated, there is simply no existing Federal law that makes criminal President Trump’s taking advantage of the DNC hack.  Depending upon one’s perspective, perhaps it is political foul-play; but it’s not criminal.

The Known Facts Strongly Suggest No Trump Campaign Involvement in the Hacks

So what is the probability that the Trump campaign was actually complicit in the hacking crime itself?  Remember it is alleged that the Russian Federal Security Service breached DNC servers in July, 2015.  Then, in March, 2016, it is claimed that the GRU, a Russian military intelligence unit, made a further breach.  These events, if they occurred, are crimes. They are equivalent to the break-in at the Watergate.  The Trump campaign is guilty of a crime only if it participated, in some fashion, in these break-ins.

So let’s take a quick look back at public reporting as it happened in 2016.  We looked for incriminating or exculpatory information that ties the Trump campaign to the DNC hacks.  And guess what we found?  From a July 26, 2016 New York Times report:

But American intelligence agencies have their doubts that the Russian intention, at least initially, was to sway the American election.  The intrusion began just shortly after Mr. Trump announced his candidacy for the Republican nomination.  At the time, his chances looked miniscule.  One senior official noted that while the cyberattack might have been intended to embarrass Mrs. Clinton, who was the presumptive nominee, it could not have been aimed at bolstering Mr. Trump.

Let’s remember this very basic point.  The first DNC break-in allegedly occurred in July, 2015.  Trump was barely in the electoral picture at that point.  We believe the probability that the Trump campaign somehow participated in that first DNC breach, or in the decision to take that action, is zero.  There is no way that the Russian attack “could . . . have been aimed at bolstering Mr. Trump.”

Similarly, the second breach allegedly occurred in March, 2016.  At the end of March, 2016, Trump trailed Clinton by 11.2 percentage points in the Real Clear Politics national poll average.  He was a very big long shot at that time.  We believe the Russians would see no advantage in coordinating with the Trump campaign in making the decision to invade the DNC servers the second time.  Not to mention, in the commission of the crime.

There Was No Reason for the Russians to Seek Cooperation from the Trump Campaign in Hacking the DNC

No, coordination in the break-ins makes no sense from any perspective. It’s almost inconceivable that the Russians would actively (directly or indirectly) work with the Trump campaign in any fashion.  And there is simply no publicly available evidence to the contrary.  There is no proof of collusion between them.

In our view, Trump was just the inevitable beneficiary of whatever may have come from the DNC breaches.  As would whoever won the Republican nomination.  But the fact of receipt of a benefit (though a “benefit” is a judgment, not a fact), which is all that we know at this point, fails to prove culpability in the actual crime.  Nor, for that matter, does any subsequent action by the Trump campaign taking advantage of the consequences of the hacks.  So far, there is no more proof of complicity in the hacks by the Trump campaign than of Bernie Sanders’ complicity.

We are stuck with the facts, such as they are.  The only crimes here are the two alleged invasions of the DNC servers.  But the timeline does not allow for Trump campaign involvement in those crimes.  The hacks occurred far in advance of any time when the Russians would have expected a direct benefit from Trump.  Or had a reason to involve him.

All along the narrative has been that the Russians didn’t want Clinton to win.  From the beginning.  And if the narrative is true, and if the Russians hacked the DNC, there was no reason for them to involve Trump.

Did the Russians Really Need Any “Help” to Hack the DNC?

Indeed, what conceivable reason would there be for the Russians to involve Trump?  We can think of no form of “help” that the Trump campaign could lend to the Russians to increase the likelihood of a successful Russian breach of the DNC servers.  Can anyone really imagine the need for hacking help?  Seriously.  It makes no sense from the Russian perspective that they would have sought aid from the Trump campaign. Similarly there is a complete lack of logic from the Trump perspective, where the risks on so many levels were off the charts.  Collusion between the Russians and the Trump campaign to hack the DNC?  How improbable.

Faction Before Country

The Democrats had better be right.  Because when, in the end, Special Counsel Mueller reports that there was no criminal collusion between Trump and the Russians, the attack on Trump will be seen as the worst partisan play in American history.  A concocted fantasy in order to implicate the President of the United States for some type of political gain. Democrats putting the interests of their faction above those of the country.  And weakening the country on the world stage, for reasons only they can rationalize.

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