A number of good legal commentaries have challenged rushing to judgment on the legal implications of the Trump campaign meeting with the Russian government. It is entirely fair to call for measured reflection when revelations are sensational and the commentary is intense. It is fine to be reminded that the evidence on the public record represents a small fraction of what is known to the congressional investigators and to Robert Mueller. On top of all this, the facts or related speculative possibilities are extraordinary and so the application of the campaign finance law may be unprecedented. We have come into new territory.
But it is also possible to overcompensate and minimize the significance of what we know to date. We have three indisputable facts that would justify a keen interest and lively debate in almost any set of circumstances: a presidential candidate’s very public, political courtship of a foreign power; that foreign government’s aggressive conduct of activities intended to influence the election; and direct communications with the foreign government’s agents in which the campaign invited that help. Of course, in evaluating these facts, the analysis should be measured and careful. But that would be true on both sides: in arguments for or against liability.
So it is worth reviewing some of the key points made against the “rush to judgment” and note the more contestable contentions.
1. The campaign finance laws are not criminally enforceable and were never intended to apply in the circumstances.
Remarkably, one of the President’s lawyers made this argument, and it is easy to dispose of, because it is simply wrong. Congress crafted the campaign finance laws with both civil and criminal enforcement. 52 U.S.§ 30109. Moreover, in 2002 Congress amended the statute to direct the U.S. Sentencing Commission to provide for enhancements when campaign finance violations involve “a contribution, donation, or expenditure from a foreign source.” In day-to-day enforcement of the federal law, the Federal Election Commission (FEC) ‘may seek a civil fine from a candidate for accepting illegal contributions or for other violations, but if the candidate appears to have had criminal intent,, the agency may refer the matter for prosecution to the Department of Justice. The DOJ does not have to wait for the FEC’s referrals. Nothing in the foreign national prohibition from enforcement removes it from the statutory scheme for criminal enforcement.
Moreover, to say that the campaign finance law has never been applied in similar circumstances, is to say nothing meaningful. It has not been applied, because there has been only one case similar to this, and the exception occurred well before the enactment of the Federal Election Campaign Act. President Nixon and his campaign in 1968 evidently conspired with the South Vietnamese government to scuttle peace talks with North Vietnam. Nixon used intermediaries to send a message that the South Vietnamese should hold out for a Republican victory and a peace deal on more favorable terms that his Administration would deliver.
Since then, no presidential campaign has done anything like that – – until now. It makes no sense to argue the law should not be applied, by its plain terms, to activities within its clear scope, because up to this point no campaign has attempted what it is alleged that the Trump campaign has done here.
2. The information that the Trump campaign was seeking was only opposition research – information – and is not a “thing of value” within the election laws.
This, too, is not sustainable on any reading of the applicable precedent. “Anything of value” means what it says – – anything of value. That is to say, it refers to whatever goods or services that a campaign acquires to advance its electoral objectives. Moreover, that’s precisely how the Federal Election Commission has read the term. Rick Hasen has come up with examples of the breadth of the Commission’s interpretation of the term “anything of value.” And that interpretation clearly covers information–opposition research.
A related argument advanced by Orin Kerr rests on the belief that only items that could be acquired in the marketplace, and for which there is a commercial equivalent, could constitute a “thing of value.” It is not clear what the argument is based on. Any thing of value seems to mean just that, and whether it was acquired legally, or could be purchased somewhere, doesn’t seem to have much bearing on whether it was beneficial to the campaign. Consider, for example, the regulatory definition of “anything of value”:
For purposes of this section, the term anything of value includes all in-kind contributions. Unless specifically exempted…the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services is a contribution….If goods or services are provided at less than the usual and normal charge, the amount of the in-kind contribution is the difference between the usual and normal charge for the goods or services at the time of the contribution and the amount charged the political committee.
Note that anything of value includes all in-kind contributions unless explicitly exempted. No exemption appears anywhere in the law for an item for which the comparable commercial value is difficult to compute. It certainly matters whether an item is purchased in the market if it is provided at less than the market price. Then, and only in that case, does the market charge, as a more exacting inquiry, become relevant to the campaign finance analysis. The regulation draws a difference between those goods or services offered without charge, and those provided at a charge less than the usual and normal price. In the Trump campaign case, no one is arguing that the campaign sought or the Russians offered discounted services. They offered free services and, if delivered in the form of an opposition research packet, goods; and by definition they would have made a contribution.
Commentators who doubt legal liability based on soliciting or accepting a “thing of value” also mistakenly find solace in the language in the three-judge district court decision in Bluman, affirmed by the Supreme Court. The court there referred to the prohibition on foreign national money in U.S. elections. Of course, it did. The case was only about money contributions that two foreign nationals proposed to make to candidates. The court never suggested–nor would the opinion be consistent with the notion–that the same foreign nationals could simply give something “in kind,” by purchasing goods or services and just providing them to their favored campaigns. At the very outset of the opinion, the court cites the full statute with its reference to a “thing of value,” and it does not at that point or elsewhere register any intention to read out of the law this category of campaign support.
It is at any rate curious to think of a “thing of value” without linking it to the spending of money. For example, information does not typically materialize out of nowhere. Resources are needed to investigate, uncover, and compile “very high level and sensitive” information or “opposition research” of the type the Russians offered to supply the Trump campaign. Someone must find and compile it, and that person is usually on a payroll. The delivery of the material generates costs that have to be covered. We do not know whether the Russian lawyer who met with the Trump campaign team was paid for her time, but we do know that she flew to the U.S. from Moscow and had expenses, including lodging in New York. Someone paid those costs as well. Are those expenses and the funds paid to defray them somehow severable from the “information” she was delivering?
Finally, it is peculiar to argue that a campaign finance statute can be sensibly crafted without reaching any “thing of value.” The omission would make enforcement hard work, if not largely a joke. The Supreme Court has repeatedly upheld the government’s authority to block “circumvention” of constitutionally imposed restrictions on campaign finance. On run-of-the-mill issues involving only US political actions, it is a standing regulatory preoccupation to spot and close the colloquial term for circumvention–the storied “loopholes.” Reformers always complain that not enough has been done to close them. Yet some commentators seem to assume that the foreign national ban can somehow serve its intended purpose–protecting the integrity of elections–even if it is sharply narrowed to apply only to the most conventional, straightforward forms of financial outlays.
3. An interpretation of the foreign national prohibition to apply to a communication about opposition research imperils free speech
Hasen has also done a nice job of exposing the limitations of this constitutional defense. The Supreme Court has been clear that free-speech considerations will be read narrowly in evaluating the constitutional limits on the regulation of foreign national electioneering activity.
Here the emphasis on electioneering: the Court affirmed a decision that allows for a foreign national to join wholesale in the public policy debate in the United States. Russia could, for example, express its opinion on a range of issues, through written, televised, or digital communications on health care, tax policy and purely domestic issues. It cannot, however, seek to influence an election–not independently, or in coordination with a campaign, and not through the use of any medium of communication. To the extent that prominent scholars like Eugene Volokh express concerns for the First Amendment rights of foreign nationals, they are amply protected under the Court’s framework in Bluman.
Volokh has also called attention to the rights of Americans and has posed hypotheticals about inquiries by campaign representatives into matters known to a foreign national, such as a businessman from another country who has politically useful information. He is suggesting that there may be applications of this provision that would raise constitutional concerns, and he believes that they may cover so many of the statute’s applications that the statute would fail constitutional overbreadth analysis.
Maybe a court would agree with him, and indeed we may find out. It is hardly a sure thing. A court would likely go out of its way to uphold the law in a case where, as alleged against the Trump campaign, a candidate and his organization enters into a systematic understanding with a foreign government to assist its bid to win the presidency. The judges can always drop a footnote and express the view that the possibilities worrying Volokh would be limited in number. They could also easily encourage the FEC to adopt a “safe harbor rule” to protect that activity.
So, yes, we do not want to criminalize conversations with a foreign national about American politics, or prevent campaigns from obtaining relevant information from foreign sources. We would indeed want to consider criminal penalties in any case of a full-fledged partnership (and significant steps along that path) between a campaign and a foreign government to bring about the mutually desired result of electing the candidate (or defeating his opponent). The senior management of the trump Campaign received an email that explicitly affirmed that the information to be offered was “part of the Russia and its government’s support for Mr. Trump.” They knew then that the meeting in question was “part” of a government project of concerted support for the Trump candidacy.
So the question is not whether there is some case somewhere that would test the constitutional limits of this prohibition. The question is whether that is this case. So far, it does not seem so.
4. The emails and the one meeting reflected in those emails are not enough to sustain a criminal conviction.
There are two thoughts here. One is whether the facts presented in the Trump Jr. emails present a potential violation of the foreign national prohibition. As noted here, and as other scholars and legal commentators have observed, the facts indicate the possibility that a crime may have been committed.
A separate question is whether those facts, if no others of any consequence are uncovered, would lead a prosecutor to bring a case on these alone. Trump Jr. argues, that on reflection, he would’ve “done things a little differently” – – that this was a mistake but it should not be understood to reflect any systematic plan or to suggest that other activities of the same kind were undertaken. In a universe in which these claims were true, prosecutors might, for example, refer the matter to the Federal Election Commission for civil enforcement – – and set the criminal case aside. The FEC might then negotiate a fine. This outcome would not support the conclusion that Trump Jr.’s actions presented no questions of criminal liability. It would mean only that prosecutors exercised their discretion not to pursue it and returned it to the civil regulatory domain for resolution.
There may exist, of course, another universe in which the Russians and the Trump campaign collaborated in various, extensive and sophisticated ways in their aim of electing Mr. Trump. As Brian Svoboda has stressed, The Trump Jr. email exchange and the meeting may be just “part” of that story, just as the Russian correspondence indicates that the offer of opposition research is just a “part” of Russian government support of the Trump candidacy. These facts are certainly relevant to a conspiracy charge that may be built on additional evidence. And if a case is brought, then any discrete violation committed within the conspiracy, such as an illegal solicitation of a foreign national at that June 9, 2016 meeting, may seem minor in relation to the whole. That does make it less a violation of the law, and it does not render that violation any less a basis for potential criminal liability.
Image: John Sommers II/Getty