Donald Trump Jr.: Will He Go to Jail?

Donald Trump kisses his son Donald Jr. at a campaign event at Regents University, in Virginia Beach, Virginia, February 24, 2016. Reuters

Could Donald Trump Jr. go to jail?

The question seems less far-fetched than it might have 24 hours ago, now that we've seen the emails in which he eagerly expresses interest in meeting with a Russian national purportedly offering damaging information about Democrat Hillary Clinton provided by the Russian government.

Legal scholars and law enforcement officials are debating how much legal jeopardy the president's oldest son finds himself in as a result of his 2016 meeting with a Russian lawyer at Trump Tower in New York City. The encounter, which took place just days after the elder Trump had sewed up the Republican presidential nomination, was brokered by a British publicist for a Russian pop star and was also attended by Paul Manafort, the Trump campaign's chairman at the time, as well as Jared Kushner, the president's son-in-law, who is currently a White House senior adviser.

The publicist wrote that the Russian lawyer would have documents that "would incriminate Hillary and her dealings with Russia and would be very useful to your father." Trump Jr.'s reply: "If it's what you say I love it especially later in the summer." The story was broken by The New York Times on Tuesday.

The central legal peril for Trump Jr. seems to revolve around campaign finance law. It's a crime not only to accept but to solicit anything of value from a foreign national for a campaign. That obviously includes things like cash donations. But can the info about Clinton that the publicist promised be considered a donation that could meet the statute's definition of a "thing of value"?

Possibly. And was Trump Jr. actually soliciting it? That seems more clear-cut, given his enthusiastic eagerness to meet with the attorney, Natalia Veselnitskaya.

It's not clear if the lawyer actually transmitted anything of value to Trump Jr. He says she didn't, and their conversation turned to U.S. sanctions erected in the wake of Moscow's human rights abuses, and to the adoption ban President Vladimir Putin imposed as a reaction to the sanctions.

But the fulfillment of a promise made by her or an intermediary is not the concern of the statute: The mere solicitation of a "thing of value" from a foreign national could be enough to trigger it. Whether Trump Jr. attended the meeting or dozed through it could well be beside the point. He eagerly sought it. Georgetown University Law School professor Paul Taylor, who is also a federal prosecutor, told MSNBC on Tuesday that federal prosecutors already had probable cause to arrest Trump Jr.

The question, though, is whether Special Counsel Robert Mueller would actually indict the son of the president on an alleged campaign finance law violation if he'd committed no other crimes. That seems like a considerable stretch. In the 1990s, the Bill Clinton re-election campaign was scrutinized over possible donations from foreign nationals. While a number of fundraisers were prosecuted, campaign officials were not. But those were hard-cash payments, along with perjury raps. What we know about Trump Jr. is far less concrete.

Consider something that happened around the same time as the meeting at Trump Tower in June 2016. That spring, the Trump campaign sent out an email appeal for funds, and it went to a number of foreign nationals—including, weirdly, members of the Icelandic parliament. Complaints were filed with the Federal Election Commission that this was a solicitation of foreign nationals and thus illegal. The Trump campaign called it a mistake. No fines and no indictments were ever issued. In short, there is precedent for convicting someone of a crime for requesting campaign donations from a foreign national, but it's not always prosecuted, and Trump Jr.'s meeting by itself is probably not enough.

What's more, Trump Jr.'s lawyer could make a vigorous case that he wasn't getting something that meets the definition of a "thing of value." Jonathan Turley, a law professor at George Washington University, thinks a mere tip may not constitute a thing of value, and notes that pretty much any campaign that gossiped with a foreign national could find itself in legal jeopardy if it did. Mueller may not want to create that kind of precedent.

The other legal paths to a Trump Jr. indictment seem more dubious at this point. Former George W. Bush White House lawyer Richard Painter has likened Trump Jr.'s actions to treason, but that seems implausible given that treason means helping an enemy government. More novel approaches also seem a stretch for a prosecutor in the spotlight. Jennifer Traub, a Vermont Law School professor, has said that Trump Jr.'s actions could be seen as a defrauding of the federal government because he was aware of a crime, making for a conspiracy rap. Some have cited the Logan Act, a 1799 law that prohibits meddling in U.S. foreign policy toward countries with which we have disputes. In the history of the republic, no one has been prosecuted for direct violations of the act. It's doubtful that Donald Trump Jr. would be the first.

Here's what's more likely: Mueller keeps building a case and he either has more and prosecutes or he doesn't. One other thing to keep in mind: Prosecutors love using perjury, obstruction of justice or other charges when they can't prove an underlying crime. Martha Stewart, the lifestyle guru, was convicted of perjury, as was I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff during the CIA leak case. Neither was convicted of the underlying crimes that triggered the investigations that ensnared them.

In the case of Jared Kushner, who seems to have failed to have reported meetings with Russian officials on his government security clearance forms, there could be some real legal jeopardy. But Donald Trump Jr. is not in the administration and never had to fill out such forms, so he might be in the clear, at least on a perjury or obstruction count.

But that assumes that this is the only contact Trump Jr. had with any Russians and that he never lied about it to federal officials. Given the hyperspeed with which the investigation seems like it's proceeding, who knows where it could lead.

Should he become a criminal defendant, Donald Trump Jr. has one out unavailable to most people who are charged with a crime: He shares a first and last name with the one man who can pardon him.