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Campaign Finance Law: When “Collusion” with a Foreign Government Becomes a Crime

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Commentary on Russian intervention in the 2016 elections has included one confidently expressed and perhaps growing view: that there may be a scandal there, but no conceivable crime.  It is claimed that the Trump campaign could wink and nod at Russian hacking, and derive the full benefit, but that without considerably more evidence of direct involvement, there is no role for criminal law enforcement.  The matter is then left to Congress to consider whether new laws are needed, and the public, of course, will render its judgment in opinion polls and in elections still to come.

This view is flawed. It fails to consider the potential campaign finance violations, as suggested by the facts so far known, under existing law.  These violations are criminally enforceable.

It would not be the first time Congress wrestled with these questions of foreign interference with the US electoral process. Following the 1996 elections, the Republican Party concluded that the victorious Bill Clinton had benefited from foreign intervention in his election. Its Senate majority organized hearings, chaired by the late Senator Fred Thompson, who opened them with the declaration that high-level Chinese officials had committed substantial sums of money to influence the presidential election. The ensuing investigation, which included a parallel criminal inquiry, did not live up to Senator Thompson’s most dramatic claims, but Congress later amended the law to tighten the long-standing prohibition against foreign national spending in federal elections.  On this point, there was bipartisan unity: that the law should stand clearly and without gaping loopholes against foreign interference in American elections.

Then the issue made a dramatic return in this last presidential election, but with a major difference.  This time, there is no doubt that a foreign state, Russia, devoted resources to influence the outcome of the 2016 election.  But unlike 1996, the manner of this intervention—the hacking of emails, the dissemination of fake news—has directed much of the legal discussion to computer security and espionage statutes.  The controversy has not had the “feel” of a classic case about political spending. It has come across in press reporting and public discussion as a tale of 21st century cyber-crime and foreign intelligence service skullduggery—more sophisticated international intrigue than Watergate’s “third-rate burglary” and associated cover-up. “Unlike the Watergate investigation, which began with a break-in,” the New Yorker’s and CNN’s Jeffrey Toobin has written, “it is not immediately clear what crimes may have been committed.”  And even if there might be criminal wrongdoing somewhere in this Trump campaign-Russia relationship, commentators have tended to doubt that there is yet sufficient hard evidence of it.

Yet even on the information so far available, there are solid grounds for paying close attention to the potential campaign finance violations.  The case is more or less hiding in plain sight.

The law prohibits foreign nationals from providing “anything of value … in connection with” an election.  The hacking of the Podesta emails, which were then transmitted to Wikileaks for posting, clearly had value, and its connection to the election is not disputed. None other than the Republican nominee said so publicly, egging on the Russians to locate and publish Clinton emails to aid his campaign. He famously declared: “I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30,000 emails that are missing.” One well known Trump confidante, Roger Stone, is among those backing the President’s candidacy who offered similar contemporaneous statements about the value placed on these disclosures (and who, having intimated that he had inside information about when the materials would be released, now faces inquiries from the Congress (and from the Special Counsel’s investigation)).

There is a fair question of what sort of involvement beyond vocalized glee would subject Americans to liability for these foreign intelligence activities. The relevant regulation suggests that something more is required: at least “substantial assistance” to the foreign spender in providing this “thing of value.” Does a presidential campaign render this substantial assistance to a foreign national engaged in influencing an election by endorsing the specific activity and confirming its strategic utility?  When the Federal Election Commission (FEC) promulgated this ban on “substantial assistance,” it said little about its scope.  It did make clear that the term was to be broadly construed.  It offered the concrete example of a U.S. citizen acting as a “conduit or intermediary” for foreign spending, but noted that this was provided as only one example.  It expressly left open other possibilities.

The President and others associated with the campaign made no bones about the value to them of the purloined email communications. The President told a rally of supporters he “loved” Wikileaks and read from the hacked communication to support his attack on his opponent for “a degree of corruption at the highest levels of our government like nothing we have ever seen as a country before.” He drew on the emails in the debates with Secretary Clinton. Notably, when he was asked during the debates to acknowledge the Russian program of interference and given the opportunity to openly oppose the actions, he wouldn’t do so. He also mentioned Wikileaks 124 times in the last month of the campaign.  The Russians could only have been strengthened in the conviction that their efforts were welcome and had value. That covers the evidence in plain sight.

Of course, investigators will examine whether there were Trump campaign communications or private assurances to foreign nationals—including Russians and associates of Wikileaks acting as their “agents”—to encourage them or help coordinate the dissemination of these materials.  Coordination at this level could well trigger the application of other provisions of the rules directed at the political campaign’s acceptance or receipt of the Russian assistance, or even its direct solicitation of it.  But the “substantial assistance” prong would cover the more indirect of the Trump campaign activities—including public statements—that were conducted at more of a distance, and yet still intended to signal the Russians that help was needed and of “value.”

A Trump defense may include the claim that he and his campaign cannot be constitutionally subjected to legal liability for any public statements on the campaign trail. They may try to frame their statements as rough-and-tumble political commentary on Russian behavior that, while helpful to the Republican nominee, neither Trump nor his associates clearly requested or for which they can be held responsible. This First Amendment defense is at least at the mercy of whatever facts are still uncovered about the extent of any “collusion.” But even with just a little more in the way of fact, with the addition of detail to an already well-established outline, the Trump campaign’s position is precarious. How strongly does the First Amendment protect a presidential nominee’s mobilization of foreign government support for his candidacy—support achieved through illegal activities?

A test of this constitutional defense is whether it relies somehow on the fact that Trump and his campaign were open and notorious in courting Russian assistance. Presumably, had they pursued this assistance behind closed doors, few would question the legal significance of the understanding reached with a foreign government supporter.  It would be remarkable to maintain that this appeal for help is converted into constitutionally protected speech because the speaker has chosen to have much or all of the conversation in public.

Recent developments in the law speak clearly to the strength of the government’s interest in an expansive enforcement of the ban on foreign national involvement in U.S. elections.  In 2012, in Bluman v. Federal Election Commission, a federal appellate court ruled, and the Supreme Court affirmed, that lawful resident aliens had no First Amendment right to contribute to American candidates and political committees. More importantly, the court emphasized that foreign national political intervention implicated a principle “fundamental to the definition of our national political community,” which is that “foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.”   At stake was “part of the sovereign’s obligation to preserve the basic conception of a political community.” It will be no minor feat for Trump campaign lawyers, relying on Donald Trump’s free speech rights, to overcome what the court called this “foundational” interest.

The law as written already treats speech as a factor in potential violations of the ban on foreign national political spending.  A foreign national may not “participate,” or “control” or “direct” decisions on contributions or expenditures. This is a speech-centered restriction. So a foreign national working for the foreign parent of a US corporation (let alone a foreign national resident in the United States) may not discuss with an American PAC Director plans for making contributions or expenditures, and it is immaterial for this purpose that the revenues on which the PAC will draw for the contribution was generated within the United States. And it is not only a question of the foreign national’s speech (to which, of course, no First Amendment protection attaches). The American PAC Director’s own speech is relevant to a finding of illegal “participation,” if the conversation indicates that the PAC Director is seeking permission, yielding control over the decision, or merely soliciting the foreign national’s opinion on how to spend the money. A statement like Donald Trump’s that he “loves WikiLeaks,” or that he hopes that more will be done to bring to light Clinton emails, would be evidence in such a conversation that his foreign national interlocutor was “participating” in a decision on political spending in connection with the election.

Trump and his campaign might argue that the hacking and dissemination of the emails were not political spending—not, in a technical sense, “contributions” nor “expenditures”—covered by the federal campaign finance law. Perhaps so, but they were something of value, and the statute and related regulations of the FEC separately prohibit any value given by a foreign national.  Of course, the Trump campaign might take up the fight on this issue and litigate it.  It would then have the thankless task of persuading a court that a presidential candidate can invite, then warmly accept and exploit, the activities of a foreign intelligence service because it is a particular kind of “value,” not a conventional contribution or expenditure.  The campaign will have an even harder time if it is established that Russians distributed information through online bots, the creation of DC Leaks in the United States, or the payment for online advertising.

What is also exceptional about the Trump case, distinguishing it from other forms of national electioneering, is the absence of any question about intent, or state of mind. In the most recent round of revisions to its rules, the FEC went to some lengths to allow a candidate or political committee to establish that it did not reasonably know about the foreign source of the contribution or expenditure or other value received.  (11 C.F.R. § 110.20 (a)(4),(7)). This is no help to the Trump campaign which certainly had every reason to know that, as widely reported and declared officially by the US government, Russia was behind the hacking.  Trump, on the campaign trail, said as much in inviting Russia to release more. At other times he suggested that perhaps Russia was not behind these activities, that no one could know: but, remarkably, he allowed for the possibility that another foreign power, China, might have been responsible. And once again, there are other parts of the public record bearing on intent that will receive close investigative scrutiny, like Trump’s close confidante Roger Stone’s repeated statements about his communications with Wikileaks and Julian Assange.

Whether prosecutors choose to interpret the law aggressively in these circumstances is bound to be affected, and not to Trump’s advantage, by the well-established identity of the foreign actor: a state, operating through its own intelligence services.  This is not the typical foreign national case. In recent years, after Citizens United, the FEC has been preoccupied with debates over political spending by corporations. It has pondered how expansively the regulations should treat campaign activities of the USA subsidiary of a foreign corporation, or by a corporation with a significant percentage of foreign national shareholders. The Commission could not agree on tightening the rules, and the reason, in part, was the difficulty that three of the Commissioners perceived in defining when a business could be deemed to represent “foreign” interests.  These complications are not present in a case involving a foreign government.

And, at the same time, it is because of this clear involvement of a foreign state actor that the Trump case will be pivotal in determining the efficacy of the ban on foreign national electioneering. The campaign finance laws have as their core purpose preventing corruption of government, or its appearance, but the provision prohibiting foreign political spending is uniquely concerned with corruption of a different, even higher order, that strikes at national security.  The Bluman court cited the high importance of preserving of the “basic conception of a political community” in holding that two individuals—one a Canadian and the other holding dual Canadian and Israeli citizenship—could not make simple, every-day contributions to political organizations.  In the Trump case, which involves active foreign intervention in a political campaign that is welcomed and encouraged by one of the candidates, this “basic conception” is even more—it is fair to say, acutely—at stake.

As the case unfolds, other instances of Russian support for the campaign might still surface, as I have indicated. The investigators will look into unconfirmed reports that the Russians may have attempted through intermediaries to buy ads placed for the benefit of Trump on social media platforms.  Should there be any evidence that the Trump campaign colluded in this advertising activity, a straightforward campaign finance violation—a massive illegal contribution to the campaign—would be added to the one built on hacking and WikiLeaks distribution. The same holds true for any collusion over use of microtargeting techniques, which congressional investigations are reportedly now also probing.

But, as a major issue of foreign national involvement under the campaign finance law, the hacking episode may prove more than sufficient to sustain the current criminal investigation, and it could wind up being central to it.

[Editor’s note: For more analysis by Bob Bauer of developments in the case of the Trump campaign and Russian involvement in the 2016 presidential election, read Part II and Part III.]

 

Photo: Presidential candidate Donald Trump during a campaign appearance on October 10, 2016, holding a printout of emails stolen by Wikileaks – AP – Dennis Van Tine/MediaPunch/IPX

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About the Author

Partner at Perkins Coie and Professor of Practice, Distinguished Scholar in Residence at New York University School of Law, Former White House Counsel to President Obama (2010-2011)