Did Donald Trump Jr. Just Confess to a Crime? Some Notes on Conspiracy and Attempt

If Donald Trump, Jr. has a lawyer, he didn’t consult that lawyer before releasing his statement about meeting with a shady Russial lawyer named Natalia Veselnitskaya on June 9, 2016 (either that or his lawyer is an idiot). I say that because, in his statement, Junior confirmed (or at the very least, didn’t deny) that he met with Veselnitskaya for the purpose of joining with her (or at least joining with a not-then-named Russian national) to use ill-gotten Russian intel to influence the results of a US presidential election.

Junior’s defense seems to be that, even though he — and the two comrades he invited to join him at the meeting: Paul Manafort and Jared Kushner — intended to collude with a Russian national to torpedo Hillary Clinton’s campaign, nothing actionable materialized as a result of the meeting. So Junior seems to labor under the impression that agreeing to cause an illegal result and trying to cause an illegal result are copacetic just so long as one doesn’t succeed in bringing about an illegal result. I have some bad news for Junior.

Before I get there, though, one caveat: Junior’s legal troubles depend largely on what kind of crime he was trying to commit. I’ll leave that to Special Counsel Bob Mueller and his small army of deadly-serious lawyers. But you can find a sampling of the laws Team Trump might have breached discussed here and here. The critical question is whether Junior specifically intended to try or agree to commit an unlawful act. Let me explain.

Specific Intent

For our purposes, let’s indulge Junior’s best-case (least criminal) version of events: that he met with Veselnitskaya to collect and use foreign intel against Hillary, but that he never actually did collect that intel from Veselnitskaya or have a chance to use it. Any crime he might have committed, then, would be what lawyers call an inchoate crime — meaning one in which the harmful result prohibited by the law didn’t necessarily happen. When it comes to those kinds of crimes — inchoate crimes — they can only be committed when a person specifically intends to do an unlawful act or cause an unlawful result.

And the underlying unlawful act can’t be conduct that’s merely careless (or some elevated degree of careless). Think about it: if you were to get drunk at a bar and then get caught driving home (without having killed or injured anybody), you’re going to be charged with a crime (drunk driving), but you’re not going to be charged with attempted murder just because you did something that could have resulted in death — but without actually wanting or intending to cause death. You can’t try to do something that you don’t intend to do. Likewise, if you told somebody at the bar that you were drunk and that person agreed that you should drive home anyway, that person won’t get charged with conspiracy to commit murder — he or she could not have agreed that you should kill somebody whom he or she didn’t intend for you to kill.

Now, if you actually did kill somebody while driving drunk, then you’d be guilty of committing homicide — but not a specific-intent kind of homicide, or the kind of homicide that can be grounds for an attempt or conspiracy charge.

Here’s the bottom line: you can’t be guilty of an inchoate crime (here, we’re talking about attempt or conspiracy) if the bad act or result criminalized by the underlying crime can only be caused negligently or recklessly; the unawful act or result has to be one that the accused wants to cause to happen.

Here’s the bad news for Junior: the statutes at issue here (again, you can sample those here and here) criminalize the kinds of acts or results that one cannot undertake or cause accidentally or just negligently or recklessly. They’re the kinds of acts or results that can only be caused if one specifically intends to do or cause them. In other words, these seem to be the kinds of crimes that can be used as the basis for a charge of attempt or conspiracy.

Attempt

As to attempt, however, federal (rather than state) courts tend to say that the statute at issue would have to expressly say that attempting to cause the harmful result (along with actually causing it, obviously) is also a crime. (Note that, if the bad result is actually achieved, the attempt charge would “merge” into the completed crime; a person can’t be guilty of both attempting to cause and actually succeeding at causing a criminal result.) Assuming the statute does allow for an attempt charge, the elements of attempt are 1) specific intent to commit the underlying crime, and 2) a substantial step taken toward achieving that result.

Since Junior has already confessed that he wanted to meet with a Russian national to gather foreign intel and use it to influence the 2016 election, he specifically intended to cause that result (the result of coordinating with a foreign national to gather and use ill-gotten information to alter the course of a US election). If that result is criminalized under some federal statute, then the first element of attempt (the intent element) is met.

A substantial step is legally defined as some amount of tangible movement or preparation related to achieving the result. In this case, Junior knew that he was meeting with a Russian national (supposedly at the behest of a known Russian intermediary) and did in fact meet with her. He spent 20 or 30 minutes, by his own admission, waiting to receive ill-gotten foreign intel to use against Clinton. The only thing that didn’t happen, if Junior is to be believed, is the actual transmission and exploitation of useful damaging information. By any standard, if the only thing remaining to happen is the substantive crime itself, the substantial-step element is satisfied.

Conspiracy

Conspiracy is also a specific-intent crime. The only other elements of conspiracy are 1) an agreement to commit the crime — a meeting of the minds, so to speak, and 2) some overt act toward the commission of the crime.

That “meeting of the minds” language smacks of contract law, often leading to confusion about what is required to satisfy this element. A conspiracy does not require a formal communication or memorialization of the agreement; it can be formed with the proverbial “wink and a nod” as long as the parties to the common plan are consciously participating in the criminal enterprise. Furthermore, a conspiracy can be formed in an instant; there needn’t be any long, drawn-out time period for planning some elaborate scheme (that’s TV, not real life).

So it doesn’t do Junior, or his brother-in-law Jared, or that silky-voiced criminal Paul Manafort, any good to say that they didn’t discuss the identity of the Russian national or the specifics of the meeting’s agenda before they all gathered at Trump Tower in New York for the purpose of exchanging ill-gotten information to be used in sabotaging an American election. Once they were all in the room together, aware of the meeting’s objective, and willing to participate in concert in achieving that objective, the agreement had formed.

And because they’d all taken the step of appearing and remaining at the meeting, they all undertook an overt act toward achieving their common end: the use of foreign intel to alter the outcome of an American election. Regardless whether Veselnitskaya’s presentation “made no sense” or turned out to be “vague” or “ambiguous,” as Junior put it, all participants were present for a common (and likely illegal) purpose. That being so, the conspiracy was complete even if the substantive crime (the bad result) was not.

Conclusion

Whether it’s a campaign-finance statute, a fraud statute, an espionage statute, or some other statute nobody has thought about yet, Junior had better hope that Bob Mueller can’t find some statute that one can violate without mere negligence or recklessness.

Junior’s defense is much like that of the cloddish pig who thinks he isn’t guilty of rape: “I didn’t finish.” Well guess what, Junior: nobody (most especially Bob Mueller) cares whether you “finished.”

If Junior — along with Veselnitskaya, Manafort, and Kushner — tried or agreed to cause a criminal result proscribed by some federal statute, he has already unwittingly confessed to criminal conduct. Somebody forgot to tell Junior that inchoate crimes, like crimes actually completed, carry jail sentences, too.

-bb