How the First Amendment could save Don Jr.

Certainly subsequent White House news has pushed Donald Trump Jr.’s June 2016 meeting with a Russian lawyer allegedly pedaling Hillary Clinton dirt to the sidelines. But as more details emerge, even Trump Jr.’s brother-in-law, Jared Kushner, has tried to distance himself from the meeting in a statement before his recent closed-door testimony to the Senate intelligence committee.

Some have dubbed the Russia meeting a category 5 hurricane and many have called for a federal prosecution of the President’s son. Still, the debate has ignored the First Amendment, a constitutional bulwark that may save the younger Trump.

{mosads}As a civil rights lawyer and law professor, I am no apologist for the Trump administration, but prosecuting Trump Jr. for violating campaign laws based on the evidence currently known to the public would raise serious First Amendment concerns.

The right to free speech shields the receipt and dissemination of information. Indeed, truthful information about candidates for high office lies at the heart of constitutional protection. In this case, there is no suggestion that Trump Jr. thought the Russians would feed him falsehoods about Democratic presidential hopeful Clinton. He wanted to learn and perhaps disseminate facts damaging to his father’s opponent.

The First Amendment exists in part to serve this very function — the disclosure of truthful information about the people seeking to govern us. As James Madison put it, “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.”

What makes this situation complicated is that the Russian government might have obtained the information by breaking hacking or espionage laws in the first place.

Trump Jr. says Russian attorney Natalia Veselnitskaya did not actually have any meaningful information in the June 9, 2016 meeting. But for the sake of argument, let’s assume the worst about Trump Jr.’s state of mind going into the meeting.

Let’s assume he thought he was going to receive information that he knew the Russians obtained through criminal activity.

As long as Trump Jr. did not participate in or encourage the Russian government’s illegal activity — and there is no evidence in the public domain that he did — he has a strong argument that the First Amendment immunizes his conduct. He was just agreeing to receive truthful information.

The Supreme Court considered a similar situation in Bartnicki v. Vopper, a 2001 case in which a journalist received a tape of a conversation among union leaders that someone had recorded in secret, in violation of federal wiretap laws. The journalist did not put anyone up to the illegal recording. The journalist did, however, publicize the recording, and the Court assumed that the journalist knew that the person who made the recording broke the law.

Drawing on the famous Pentagon Papers Case, the 1971 decision that allowed the media to publish classified documents about the Vietnam War, the Bartnicki Court held that the First Amendment protected the journalist’s right to publicize the recording.

In the current situation, Trump Jr. stands in the shoes of the journalist in Bartnicki, and the Russian government stands in the shoes of the illegal recorder. Like the recorder, the Russian government may have obtained the information illegally.

Like the journalist, Trump Jr. may have known or strongly suspected that the information was obtained illegally, but there is no evidence at present that he participated in or encouraged any illegality.

If special counsel Robert Mueller in his investigation of Russian interference in the 2016 election sought to prosecute Trump Jr. for the meeting, he would likely rely on a campaign finance law that criminalizes accepting “money or other thing of value” from foreign nationals.

Surely a “thing of value” means that a campaign cannot accept stocks, bonds, bars of gold, and Renoir paintings from foreign nationals. But deciding whether truthful information about a competing presidential candidate is a “thing of value” under the statute is more complicated.

The question is so thorny that judges would likely rely on a doctrine called “constitutional avoidance.” That rule posits that if a statute is ambiguous between two meanings, one of which is potentially unconstitutional and one of which is safely constitutional, the court should opt for the more narrow, and safely constitutional, interpretation.

A narrow reading of the term “thing of value” that does not criminalize mere information avoids any potential First Amendment problem. Courts would likely adopt that reading of the law. Good news for Don Jr.

To be sure, trouble may lie ahead for the President’s first born if evidence emerges that he encouraged or participated in Russian criminality. Perhaps Mueller has or will find statements to the Russians from Trump Jr. or others in the campaign like “this is great—get me more.” The First Amendment does not protect people who join or abet a crime. Or perhaps the presence of Rinat Akhmetshin, a possible Russian spy, at the meeting will lead to evidence that Trump. Jr. was colluding in espionage.

If anyone in the campaign or the family actually were recruited, that would be a serious crime, but the emails released to date suggest that Trump Jr. had no idea that Akhmetshin would attend.

Such is the irony, and the power, of the right to free speech. It protects to everyone, even members of President Trump’s inner circle who may well hold the First Amendment in contempt. The elder Trump’s disdain for the media is legendary, and he was just sued for First Amendment violations related to his Twitter account.

The Trump family may not like the First Amendment, but they are going to need it.

David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center, a clinical assistant professor of law at Northwestern Pritzker School of Law, Chicago, and a Public Voices Fellow through The OpEd Project. He worked previously as a First Amendment and media lawyer in private practice.

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