By Cam Erickson
After a year of investigation into Russian collusion with the Trump campaign, there has been little to show for it. The widely reported meeting between Trump Jr. and the Russian lawyer, supposed to involve opposition research, turned out to be about Russian adoption policy affected by sanctions. In fact, Jared Kushner emailed his secretary to get him out of the meeting.
When asked if he thought the meeting was a crime, self described liberal law professor Jonathan Turley replied, “I don’t. And this talk about treason is perfectly bizarre.”
In the western world, authorities must have evidence of a crime before seizing a suspect’s property. The Fifth Amendment to the Constitution declares that no one shall be “deprived life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868 uses the same eleven words called the Due Process Clause, to describe the legal obligation of the states.
A key element in the Western system of justice is that one’s rights are respected during an investigation. Authorities must obtain a search warrant before searching a citizen’s property, including the right of the defense to fully examine the evidence once obtained.
The principle of “fruit of the poisonous tree”–defined as courts rendering evidence obtained through illegal means as inadmissible–also applies. The Supreme Court defined this principle in Silverthorne Lumber Co v. United States to mean it applied not only to the illegal evidence itself, but also to any evidence obtained as a result of the initial illegal evidence.
Contrast this with dictatorships like Stalinist Russia. In 1936, despite having a new constitution that supposedly guaranteed Soviet citizens freedom from arbitrary arrest and the right to a defense in a public court before an independent judge “subject only to the law,” engineered the arrest and torture of thousands of Communist Party and government officials. Most of those arrested were not tried in public or received no trials at all.
The accused were often charged with spurious charges, and the evidence (or lack thereof) was comprised almost entirely of confessions from the defendants. These “confessions” were almost entirely the result of intimidation and torture. Conversely, in the same year the U.S. Supreme Court ruled in Brown v. Mississippi (1936) on the issue of forced confessions that, “[i]t would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.”
In Stalinist Russia, over 3,000 secret police agents were shot and one-third of the military officer corps were executed. Scores more were imprisoned, shot or sent to Siberia on the basis of these forced confessions. Stalin used political abuse of psychiatry against political dissidents. For example, the communist party diagnosed people with “philosophical intoxication”, or other false charges of mental unfitness to eliminate them. KGB men arrested a former Russian politician and Soviet human rights activist, for handing out leaflets outside an opera. She was sentenced to indefinite detention in a prison psychiatric hospital under the bogus diagnosis of “sluggish schizophrenia.”
As we read these horror stories we are thankful to be Americans where we enjoy many freedoms but wonder, could it ever happen to us? While it certainly hasn’t gotten to the level of Communist Russia, America is no stranger to political scandal and investigations.
Many historians point to Republican attacks on Bill Clinton in the 1990s as an instance where a politician was unfairly targeted for political reasons. Princeton professor Julian E. Zelizer classified it as, “meaningless endless investigations into whatever people could find with the purpose of just getting him.” Another professor told the LA Times, “[It] began with business dealings into Whitewater and after years and millions of dollars wound up with Monica Lewinsky.”
Politics are playing a similar role in the Russian investigation. What started with an investigation into the Trump Campaign, has morphed into something much larger. Special prosecutor Robert Mueller has casted an exceedingly wide net when investigating possible collusion between the Trump campaign and Russia, expanding his probe to look into President Trump’s business dealings. Seven of Mueller’s staffers are Democrat and Clinton donors.
Jared Kushner in a recent two-minute press statement said, “I did not collude with Russia, nor do I know of anyone else in the campaign that did so… Donald Trump had a better message and ran a smarter campaign, and that is why he won. Suggesting otherwise ridicules those who voted for him.”
Donald Trump rightfully won the election on November 8th. Democrats should rely on American Democracy — that is, planning a better strategy in 2018 and 2020 — while honoring the Fifth and Fourteenth Amendment rights of all defendants. Evidence should always be gathered after the crime, and not before. To do otherwise harkens to a darker era of a country across the sea.