The President and Criminal Prosecution @ 5 2017

Federal Election Laws, Espionage, Sabotage, Sedition, Conspiracy, and Treason: The Trump-tanic @2017
AND 
Perjury, Computer Hacking, and Solicitation: the Trump-tanic @ 7 2017

So there is a lot of discussion now about impeachment, removal, and/or criminal prosecution of a wayward U.S. President. So far I haven't heard of a sitting U.S. President being prosecuted criminally for espionage, sabotage, and/or treason, but I think we may be close to witnessing a quite novel and historic event where this may be the most appropriate process.

The day that the president-elect visited Obama, Trump's physical demeanor and scared expression almost made me feel for the man. The persons that I immediately did feel concern for were his adult children, as my prediction then was that his conflicts immunity (notwithstanding the Emoluments Clause issues) was no protection to his children and so they were likely to end up in jail. albeit for bribery, corruption, etc..

In the days after his inauguration, it became clear that he would in fact put his family into play, so to speak. Starting in February, I started thinking that our "cultural" discussion of criminal prosecution of Trump (and certain of his family members) may be too limited and may need to consider the federal crimes of espionage, treason, and sabotage. Now, with the recent release of information that Kushner, Trump's son-in-law, sought during the transition to establish a communication back channel directly with the Kremlin, this thought becomes even more interesting, if morbidly so, because, well, its my layman's understanding that a civilian attempting to skirt U.S. surveillance to communicate directly with the Kremlin is usually called a "spy" .

Now I acknowledge that Presidents pretty routinely establish back-channels and send their officials to attempt whatever policy progress that they conclude would be good for the country and good for their legacy. Nixon sent Kissinger into secret meetings with the Soviets and we ended up with the Strategic Arms Limitations Treaty (SALT). But Kushner's actions are completely different:

- He wasn't a public official--and even if he was we have a "One President" policy in this country;

- He didn't have a security clearance;

- He didn't have/express a policy motive;

- He (and Trump) did/do have a sizable personal financial motive. Kissinger and his President-father-in-law didn't have any massive personal financial interests/wealth associated with important Russians/Russian banks;

- Kissinger didn't ask to have secret communications directly with the Kremlin solely on Russian soil and solely using Russian equipment and protocols; and most important of all right now,

- The Soviet's hadn't just interfered with Presidential election and hacked the DNC, actions which both party's members have characterized as an act of war, as an attack.

And, as you already know if you read my previous posts, I predict that VP Pence is too tainted to avoid going down with the Trump-tanic. In the "high crimes" thought, we have to remember that Pence lead Trump's transition team and so was in charge of background screenings for clearances, among other things. Pence knew or had a duty to know a lot of important things that were going on from November 9th to January 20th.

Let's start with:


VIOLATION OF FEDERAL ELECTION LAW

The law:  11 CFR 110.20 - Prohibition on contributions, donations, expenditures, independent expenditures, and disbursements by foreign nationals (52 U.S.C. 30121, 36 U.S.C. 510).

(a) Definitions  

Title 11, Chap. I, Subchapter C, Part 300, Section 300.2, Definitions

(a)Definitions. For purposes of this section, the following definitions apply:

(1)Disbursement has the same meaning as in 11 CFR 300.2(d).

(2)Donation has the same meaning as in 11 CFR 300.2(e). [Which says: 

"(e)Donation. For purposes of part 300, donation means a payment, gift, subscription, loan, advance, deposit, or anything of value given to a person, but does not include contributions."]

(4)Knowingly means that a person must:

(i) Have actual knowledge that the source of the funds solicited, accepted or received is a foreign national;

(ii) Be aware of facts that would lead a reasonable person to conclude that there is a substantial probability that the source of the funds solicited, accepted or received is a foreign national; or

(iii) Be aware of facts that would lead a reasonable person to inquire whether the source of the funds solicited, accepted or received is a foreign national, but the person failed to conduct a reasonable inquiry.

(g)Solicitation, acceptance, or receipt of contributions and donations from foreign nationals. No person shall knowingly solicit, accept, or receive from a foreign national any contribution or donation prohibited by paragraphs (b) through (d) of this section.

(h)Providing substantial assistance.

(1) No person shall knowingly provide substantial assistance in the solicitation, making, acceptance, or receipt of a contribution or donation prohibited by paragraphs (b) through (d), and (g) of this section.

(2) No person shall knowingly provide substantial assistance in the making of an expenditure, independent expenditure, or disbursement prohibited by paragraphs (e) and (f) of this section.

(i)Participation by foreign nationals in decisions involving election-related activities. A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision-making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.

CASE LAW: 
Bluman v. Federal Election Commission, 2012 : A lawful resident alien has no First Amendment right to contribute to American candidates and political committees, and that foreign national political intervention implicated a principle "fundamental to the definition of our national political community," "which is that "foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government." It is the sovereign's obligation to preserve the basic conception of a political community.

TREASON

The law: U.S. Constitution
Article 3 Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Reader be aware that treason has distinct importance as a crime for which one can be prosecuted and convicted and a distinct importance as a cultural legal and political concept. This point is important because there may be treasonous acts which demand prosecution but which occurred not during a time of war, which is a requirement for the criminal prosecution of treason. Also, it may be interesting to remember that states have their own version (criminal versions) of "treason".
So, as history shows, when War has not been declared, the "perpetraitor" is subject to prosecution and conviction for violation of any of a myriad of other "black letter" crimes.

The U.S. Constitution, at Article III, section 3, defines "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." It then speaks to the crime of treason and what is required for the criminal conviction.

First, let's highlight that Trump's/Trump's team's actions very likely meet the understanding of "Treason" as we know it culturally in that they have betrayed their country by attempting to overthrow a government to which they owe allegiance. They colluded amongst themselves and with a foreign government to subvert election laws and to subvert U.S. citizens' right to participate in the election of their president, with the goal of assuming control of the executive branch of the U.S. government, and in exchange for depleting the authority and power of the U.S. within the Western world and as against Russia's position in that system.

Because several important public officials - elected and appointed (Congressional and Intelligence Community) have characterized Russia's 2016 interference with our electoral process as an "act of war", conviction for treason may not be the long shot that I originally thought. So this is an important characterization when it comes to exploring whether Trump, member(s) of his campaign or transition team, or his staff/family can be charged with committing treason. Further, convictions have been obtained using only circumstantial evidence, and against a father harboring his spy son.


SABOTAGE

The law:
U.S. Code › Title 18 › Part I › Chapter 105
18 U.S. Code § 2153 - Destruction of war material, war premises, or war utilities

(a) Whoever, when the United States is at war, or in times of national emergency as declared by the President or by the Congress, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war or defense activities, or, with reason to believe that his act may injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war or defense activities, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any war material, war premises, or war utilities, shall be fined under this title or imprisoned not more than thirty years, or both.

(b)If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as provided in subsection (a) of this section.

This may be a non-starter due to the apparent requirement of a state or war or a declared national emergency. Nonetheless, it is a very interesting prosecution to consider, since the violation is an act that sabotages the ability of the government to prepare for or participate in war or national defense. Operating a "fake media" system that usurps the government's ability to inform its citizenry about important security matters may fall into this category.


ESPIONAGE

The law: U.S. Code › Title 18 › Part I › Chapter 37
18 U.S. Code § 794 - Gathering or delivering defense information to aid foreign government

(a)Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

Prosecution and conviction is possible during peace time-- no formal declaration of war is necessary. Violation occurs when, for example, a person gathers and transmits defense information knowing it will be used to damage the United States or assist foreign nation(s).

Also see this other section:

18 U.S. Code § 798 - Disclosure of classified information

(a)Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—


SEDITION AND CONSPIRACY
There are federal and state version of sedition laws, so this opens up a whole new set of questions. But, basically, sedition laws make criminal the act of advocating/aiding overthrow of the government.
 Coordination v. Collusion
Coordination is an election law term: plan with another to interfere unlawfully with campaign