It’s been said that Donald Trump Jr.’s email to Jared Kushner and Paul Manafort is a ‘smoking gun.’ I haven’t seen much explaining why. This post covers that topic.

Here’s the email:

From: Donald Trump Jr.

Sent: Wednesday, June 08, 2016 12:03 PM

To: Jared Kushner, Paul Manafort

Subject: FW: Russia – Clinton – private and confidential

Meeting got moved to 4 tomorrow at my offices.

Best,

Don

The entire email chain is available here courtesy of the New York Times.

Kushner testified that he didn’t read the email or know that the meeting was to discuss colluding with Russia. How does that claim hold up given the publicly known evidence? Horribly.

First, look at the text of the email: “Meeting got moved to 4 at my offices.” (emphasis added). He wasn’t announcing a meeting. He was telling them that the time for the meeting was changed. He had already explained the meeting either by email or verbally. Why else would Manafort even show up if it wasn’t about the campaign? Why would Kushner think Manafort was invited?

Kush and Junior say the meeting turned out to be about “adoption.” The problem for them is that even under their account, they didn’t know it would be about adoption until they were in the meeting. They were there to talk “Russia – Clinton” with Russians. It’s not credible that Junior got Kush and Manafort to a meeting with Russians while never telling them the subject of the meeting.

And that’s assuming that ‘adoption’ wasn’t code for ‘sanctions.’

Plus, Manafort was the campaign director. If he’s coming, how can it be about anything unrelated to the campaign? And very important to the campaign? In summary, Kushner’s claim that he didn’t know the purpose of the meeting is suspect.

Second, Kushner’s claim that he didn’t read the email is inconsistent with how phones display emails. Look at your emails on your phone. Notice how the subject and the first sentence show up without you even opening the email. Kushner would have seen that the “Russia – Clinton private and confidential” “meeting got moved to 4 tomorrow at my offices” without even trying to read it. Just knowing how in-boxes display emails makes Kushner’s didn’t read it claim dubious. Image result for smoking gun

Incidentally, if I was investigating this, I would get all Junior’s emails during the campaign. I’d be looking for how many had ‘private – confidential’ in the subject and what the subjects of those were.

Did Junior often use that phrase in the subject line? Maybe not. If that’s the case, it’s extra bad for Junior, Kushner and Manafort.

Third, if he didn’t read it, how’d he wind up at the meeting? Think about that one for a minute. The only plausible answer is that they had talked about it, but that might be worse for Kushner.

Fourth, the law presumes you read your documents. Yea, I get that technically it just assumes you read a contract that you signed even if you didn’t. But the underlying premise applies, just not as much as if it was a contract. Kushner is starting with a presumption that he read the email. Just saying he didn’t is unlikely to cut it. Most people will not believe him.

Fifth, documents are considered ‘smoking guns’ because you can’t argue about what’s on the paper. Sometimes you can argue about what it means, but that’s not the case here.

In contrast, oral testimony is more malleable. One of the main things I look at when screening a case is whether the case boils down to a swearing match. This is sometimes referred to as a “he said, she said.” I hate swearing match cases on the plaintiff side. Who can say who the favorite is in a swearing match? Absent other evidence, I rate every swearing match a coin flip, at best.

But you can build a case around documents. In a human vs. document swearing match, the document is always a big favorite. For example, in a medical case, whichever side has to argue that the medical records are wrong about something is not favored to persuade the jury on that point.

The same rationale applies to Junior’s email. Would Kushner go to trial if his defense was that he didn’t read the email and didn’t know that the subject of the meeting was collusion? If he did, it would likely be against the recommendation of his lawyers.

In summary, Junior’s email is a ‘smoking gun’ piece of evidence that the Trump campaign knew and encouraged the Russian government to intervene in the election.

But what about Trump, Sr. Did he know? A few days after this email exchange, he said he would give a big speech exposing Clinton. That’s circumstantial evidence that he knew about the meeting and Russia’s efforts to help him win. The fact he is freaking out over the investigation? The fact that in interviews his tone of voice changes like he is about to cry? More circumstantial evidence that he knew and the vice is tightening.

There also seems to be a pattern developing to Trump’s freakouts. The White House learns of incriminating evidence weeks before the public. So this week’s freakout could be about the big news we hear about next month. What happened this week? Manafort testified and gave Congress his meeting notes. What ever happened to Manafort anyway? Where’s he been hiding out?

Most lawyers I’ve talked to about the known evidence believe that one or more of the Trump-side players have already flipped. Even if they haven’t, it’s going to be really hard for team Trump to hold this together once the FBI starts sweating them. More likely, they start playing ‘Let’s Make a Deal.’