by Reuben Guttman, Founding Member, Guttman, Buschner & Brooks PLLC
In this era of electronic information, a large part of what we do or think is recorded in real time through emails, tweets, cell phone photographs, videos and Facebook. If electronic information can be secured through document requests, subpoenas or civil investigative demands, there may be little more to learn from direct witness examination other than testing theories, authenticating records and getting a better sense of the personalities that are the subject of the investigation. While this was not the paradigm for the Watergate investigation of yesteryear – occurring at a time when there were no emails or even an internet – it is the paradigm for the current investigation of the Trump campaign’s ties to Russia.
And so, on June 11, 2017, Donald Trump Jr. released an email chain that Senate and Department of Justice investigators will undoubtedly learn about anyway. Why did he do it unprompted? Perhaps it was out of panic. Perhaps he thought that releasing some emails would cause investigators to refrain from seeking all of his emails through a subpoena. Or perhaps it was a manifestation of the self-destructive impulses that also prompt his father’s unpredictable conduct.
A review of the few emails that Mr. Trump Jr. disclosed allows us to envision how investigators might use them.
On June 3, 2016, Donald Trump Jr. received an email from Rob Goldstone – a British publicist – noting that the Russian Government wanted to provide the Trump campaign “with some official documents that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” The email further noted that “this is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump…” Donald Trump Jr.’s response? “If it’s what you say, I love it especially later in the summer….”
Senate and Department of Justice attorneys and investigators will be analyzing each word of these emails and launching an investigatory plan that will be far reaching.
Investigators will no doubt focus on the phrase “but is part of Russia and its government’s support for Mr. Trump.” The word “part” is one of those “loose thread words” that investigators will tug at. It is a word that connotes a much larger scheme. It is a word that investigators will cite to over and over again in their questioning.
The word “useful” is another one of those words that can unravel a scheme. “Mr. Goldstone, sir, when you used the word ‘useful’ in this email that you transmitted to Donald Trump Jr., what were you intending to communicate?” And, to Donald Trump Jr., “Sir, what did you understand the word ‘useful’ to mean?” And then there is the phrase, “especially later in the summer.” That phrase, too, opens up a line of questioning. “When you use the phrase ‘especially later in the summer’ what did you mean to communicate to Mr. Goldstone?”
We could go on and on about how each part of these emails can be used in questioning, but you get the idea. Of course the big question for investigators is whether to begin questioning the president’s son now or after subpoenas secure all emails from him, Jared Kushner, Paul Goldstone and Paul Manafort.
At the end of the day, like most depositions in a world where emails provide a real-time recording of events, the interviews or investigations with witnesses will be more in the mode of confirming information and testing theories, as opposed to the fact finding of the past.
Once the emails and other documents are secured through subpoena, they will be loaded into an electronic database. Government lawyers and investigators will comb the database making notes on specific documents. Some documents will be stand-alone admissions or direct evidence of an impropriety. Other documents will be circumstantial in that they will allow prosecutors to argue inferences. Still other documents may have no independent relevancy but may be useful as catalysts to pry information from less-than-forthcoming witnesses. These are documents or emails that, for example, put people at the same meeting, or in an email chain. These are the documents that are so useful when a witness conveniently says, “I have no recollection.” or “I don’t know that person.”
Even if the Trump team wanted to get its story straight by agreeing on an “alternative set of facts,” they will have to deal with a real-time electronic record. And – at the end of the day – the story of what happened here will not be told by the “Fake News Media” but by the president and his staff’s own words. It is a lesson in contemporary litigation.