Special Counsel Robert Mueller is investigating Russian interference with the 2016 presidential election and possible collusion with the Russians by members of the Trump campaign. But news that the Clinton campaign and the Democratic National Committee helped fund the infamous “dossier” about President Trump has led to charges that the Clinton campaign also colluded with the Russians. Some, including the President himself, claim the preparation of the dossier is the real scandal and that prosecutors should be examining Clinton, not Trump. Others, including some prominent law professors, claim the dossier demonstrates that both campaigns were equally culpable and so if Trump’s Russian collusion is fair game, Clinton’s should be as well.
These arguments capitalize on the vagueness of the word “collusion” which, as I wrote here, is not really a criminal law term. It’s easy to claim that if someone working for the Clinton campaign at some point met with someone from Russia, that qualifies as “collusion” and equally deserves to be investigated. But such claims ignore the crucial factual distinctions between the two situations. They also rely on various logical fallacies that only serve to obscure the real issues.
Mueller’s investigation is focused not on “collusion” but on allegations of conspiracy and related criminal offenses. When it comes to potential criminal violations, the preparation of the dossier has almost nothing in common with the allegations surrounding the Trump campaign. Claims to the contrary are simply a smokescreen.
Background: The Trump Dossier
The dossier consists of information gathered about Trump’s activities and connections in Russia and possible coordination with Russia to influence the presidential campaign. Work on the dossier was initially funded during the GOP primaries by an anonymous Republican who was opposed to Trump. After Trump locked up the nomination, the Democratic National Committee and Clinton campaign agreed to continue funding the research.
The dossier was prepared by a company called Fusion GPS. To do the work, Fusion retained the services of Christopher Steele, a former British intelligence agent with extensive experience in Russia and ties to the U.S. intelligence community.
Steele was so troubled by what he found that he shared the information with the FBI. The intelligence community found the information sufficiently credible that FBI Director James Comey briefed both President Obama and President-elect Trump on the dossier’s contents after the election. U.S. intelligence reportedly has verified some of the allegations in the dossier and has been unable to verify others. There are recent reports that Steele believes the dossier will be proven to be 70-90% accurate.
White House Response: What About Hillary?
The White House has argued that the preparation of the dossier represents the real Russia scandal. President Trump has Tweeted:
White House press secretary Sarah Huckabee Sanders recently said: “The real collusion scandal as we’ve said several times before has everything to do with the Clinton campaign, Fusion GPS and Russia.” Referring to Democratic funding of the dossier, Fox News commentator Chris Wallace opined that there was more evidence of Democractic collusion with the Russians than of Republican collusion.
This tactic is a rhetorical deflection commonly known as “whataboutism.” When accused of something, the whataboutist doesn’t respond on the merits but essentially charges the accuser with hypocrisy by pointing to something the accuser has done that is allegedly similar. Ironically, “whataboutism” is thought to have originated as a Soviet propaganda technique.
The “whataboutist” response is a fallacy because it does not address the merits of the underlying charge. Assume for argument’s sake the Clinton campaign did do something wrong by participating in the preparation of the dossier. That would not detract from any culpability that those involved in the Trump campaign may have for working with the Russians. If I robbed the bank it doesn’t affect my guilt if I respond by saying, “Yeah, well, what about you — you robbed the liquor store!”
So even if the Clinton campaign may have something to answer for based on the preparation of the dossier, that doesn’t demonstrate the Trump campaign did nothing wrong or that Mueller’s investigation has no basis. And even if both campaigns were culpable, many would agree that investigation of the candidate who actually won the election and is the sitting President should be a higher priority than the investigation of a private citizen who lost.
But this is all hypothetical. In terms of potential criminal violations, the preparation of the dossier is not at all similar to the alleged activities of the Trump campaign. The “whatabout” arguments simply create confusion and deflect attention, which is, of course, precisely their purpose.
The Law Professor Responses: The Fallacy of False Equivalence
A different logical flaw is displayed by two prominent law professors: Alan Dershowitz of Harvard and Jonathan Turley of George Washington University. Both have repeatedly argued that collusion is not a crime and that there is no basis for a criminal investigation of the Trump campaign. When the dossier allegations emerged, Dershowitz and Turley seized on them to accuse liberals of hypocrisy. If you support a criminal investigation of the Trump campaign, they argued, then you must also support a criminal investigation into the Clinton campaign’s role in the preparation of the dossier.
In a series of Tweets on November 5th and 6th, Dershowitz repeatedly claimed that the Trump and Clinton campaigns were basically on equal footing when it comes to Russia:
“Do you agree that Clinton shouldn’t be prosecuted for a non crime? Why is it irresponsible to make same argument re Trump?”
“Neither side should be making up crimes against the other”
And, in a masterful example of another fallacy, the straw man:
“Should there be one law for Democrats & a different one for Republicans?”
For his part, Turley wrote in an article for The Hill and on Twitter that he was skeptical of criminal allegations concerning either campaign, but that sauce for the Trump gander was sauce for the Clinton goose: “If seeking dirt from the Russians on Clinton is now a federal crime, how about seeking dirt from Russian sources against Trump?”
These arguments suffer from the fallacy known as false equivalence. They assert that the two cases are fundamentally the same and should result in the same outcome. But about the only thing the allegations against Clinton and Trump have in common is that both involve campaigns and Russia. Otherwise the facts and circumstances are not at all equivalent. And when it comes to criminal law and criminal investigations, facts matter.
The Trump Campaign vs. the Dossier
Profs. Dershowitz and Turley argue that if a criminal investigation of the Trump campaign is appropriate, then an investigation into the preparation of the dossier would be as well. But based on what we know so far, there are critical factual differences between the two.
Historical research v. proactive interference – The most important distinction is that between gathering historical information and proactively working to influence the campaign. Steele prepared his dossier by gathering intelligence about Trump and Russia. He did research and passed the information along. There is no allegation that he or anyone else in the Clinton campaign collaborated with any Russians to do anything in the future to influence the campaign or undermine Trump.
The Trump campaign, on the other hand, is suspected of possibly working proactively with Russian nationals to influence the outcome of the election. Mueller is investigating whether any members of the Trump campaign may have cooperated with Russians concerning leaks of emails stolen from the Democratic National Committee and Clinton campaign managerJohn Podesta, to create phony Twitter and Facebook accounts, and to flood social media with false stories intended to influence the election. There also are allegations that a data-crunching firm called Cambridge Analytica hired by Jared Kushner for the campaign may have helped the Russians target particular areas and demographic groups with their social media campaigns. Contrary to Prof. Turley’s claim, the investigation is not merely about “seeking dirt” about Clinton — it’s about working proactively to influence the election.
Campaign officials directly involved – The dossier was prepared by Steele, who was retained by Fusion GPS, which was hired by a law firm retained by the Clinton campaign and the DNC. There is no allegation that individuals who were part of the Clinton campaign met with any Russian individuals in connection with the dossier or knew what Steele was doing. In fact, Clinton and the leaders of her campaign apparently did not even know about the dossier until reports about it appeared in the press.
Within the Trump campaign, the allegations are that individuals at the very highest level met directly with Russians offering information on Hillary Clinton and claiming to have stolen emails. The infamous June 2016 meeting in Trump Tower with Russians promising dirt on Clinton included top members of the Trump campaign including the president’s own son and son-in-law and campaign manager Paul Manafort. Campaign officials such as Jared Kushner and now-attorney generalJeff Sessions failed to disclose meetings with Russians on their security clearance forms and only later admitted to such meetings. Foreign policy advisor George Papadopolous, who has pleaded guilty and is cooperating with Mueller, was actively cultivating contacts with Russian nationals and sharing that information with others in the campaign, including at meetings that Trump himself attended.
Potentially dealing in stolen property – The Trump campaign may have accepted help from Russians on matters involving information illegally hacked from the DNC computer system and stolen emails. Computer hacking is a federal crime. Mueller is investigating whether Trump campaign officials knowingly accepted the stolen emails and actively worked to exploit the information contained in them.
With the Steele dossier, again, the allegation is that it consisted of gathering historical intelligence information from contacts Steele had cultivated over many years. There is no allegation that any of the information stemmed from an illegal source.
Concealing information and false statements – A final distinction lies in how the information was handled by the respective parties. Steele was so alarmed by the information he uncovered that he shared it with the FBI. Those engaged in possibly unlawful collusion with a foreign power do not ordinarily report their own activities to federal authorities.
The Trump campaign, on the other hand, allegedly received information suggesting that a foreign power had unlawfully hacked the computers of a U.S. political party and campaign official. They did not report this information to the FBI. Instead, at a minimum they explored the idea of meeting with the Russians who did the hacking to obtain access to those emails and possibly use them against Clinton.
Trump campaign officials have repeatedly concealed information about their contacts with Russians, revealing that information only when confronted with new evidence that the contacts took place. The most recent example is Attorney General Jeff Sessions, who just this week in testimony on Capitol Hill revealed new information about potential campaign contacts with Russians that he previously claimed not to recall. In addition to constituting possible independent crimes, false statements and concealment provide evidence of corrupt intent and knowledge of wrongdoing.
Comparing Apples and Oranges
The allegations about the Trump campaign may ultimately prove to be unfounded. That often happens in white collar investigations. But the allegations provide a solid basis for an investigation to determine whether any criminal laws may have been violated. When it comes to the dossier, there are no comparable allegations of potential criminality.
We really need to look no further than how the FBI reacted to the two matters. The allegations in the Steele dossier were found by the FBI to justify a counter-intelligence investigation and later a criminal investigation. The allegations were also considered sufficiently serious by the Trump Department of Justice to warrant the appointment of an independent counsel. When it comes to the preparation of the dossier, the FBI not only did not see a basis for a criminal investigation into its preparation, but expressed interest in continuing to fund Steele’s research itself.
Professors Dershowitz and Turley, without the benefit of access to the confidential grand jury investigation or the FBI files, feel confident in saying there is no basis for criminal charges. They apparently believe that Mueller and the team of professionals he has assembled either are incompetent or are political hacks. But the prosecutors’ actions thus far reveal just the opposite.
Saying “what about Clinton” is a convenient diversion, but it’s a sloppy argument that ignores the facts and doesn’t respond to the serious allegations about the Trump campaign. Fortunately, Mueller and his team are unlikely to be distracted.
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