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Campaign Finance Law: When “Collusion” Becomes a Crime: Part II

 

As a potential crime under the campaign finance laws, the Trump campaign collusion with the Russians is well documented. As I contended in a recent essay, there is substantial evidence in plain sight. The President applauded a foreign government for its interference in the election and suggested that he would be happy to see more of the same. Asked to disavow it, he declined to do so. Both the candidate and his campaign made extensive use of the material the Russians supplied via WikiLeaks on the campaign trail and in the presidential debates.  The Russians had a willing partner in their design to influence the election and a clear signal that their intervention had value. There is more than enough in the public record to warrant inquiry into the Trump campaign’s “substantial assistance” to a foreign government in violation of the campaign finance laws.

Some analysts believe that this is evidence is insufficient. They insist that more is needed in the form of direct communication between the campaign and the foreign government.  But they are mistakenly discounting the significance of the evidence in plain sight, and looking in the wrong direction for more proof.

Weighing the Evidence in Plain Sight

It is important to acknowledge there is some skepticism whether any public appeal for support from a foreign power can support a violation of the campaign laws.  The skeptic might assume that Trump or his associates could say whatever they said out in the open for anyone–the Russians included–to interpret and act upon as they wished.  On this view, for the law to be broken, the understanding between the American campaign and Russian government would have to share some of the elements of a more explicit agreement forged through private channels of communication.  After all, Trump might have meant his shout-out to the Russians half humorously. He might have intended to needle the Clinton campaign. And once this material appeared on WikiLeaks, it was fair game for political commentary and debate. The press after all was extensively covering the disclosures as well.

This line of analysis mistakenly assumes that provisions of campaign finance law that define “coordination” set forth the controlling body of rules here. Spending coordinated with a campaign is a contribution, and the coordination can be achieved in various ways–a direct request by the candidate, or the campaign and independent spenders’ use of conduits to arrive at an understanding. These coordination rules are invoked against candidates and groups purporting to make unlimited “independent expenditures” for their benefit.  The claim of independence is defeated if the candidate is feeding information to the groups on this coordinated basis to facilitate and enhance the value of the expenditures.

The coordination standard would apply to any spending by foreign nationals that results from these forms of collaboration of a candidate with the spender. If, for example, the Russians placed paid advertising on an Internet platform on a suggestion, direct or indirect, from Trump campaign associates, then the coordination rules would require that the spending be treated as an illegal contribution to the Trump campaign.

But the coordination rules do not apply to communications between a campaign and an “independent” supporter if the strategically useful information that the supporter uses to shape expenditure is publicly available. The rules distinguish, for liability purposes, the public from the more private means through which an independent supporter may obtain the information.  Say, for example, that a candidate posts to her website a statement that her campaign wishes to emphasize tax reform in the closing weeks of the campaign. A group that picks up on this suggestion and runs ads praising the candidate’s position on tax reform has not illegally coordinated with the candidate. It is free to use the candidate’s public statement of her needs, interests or strategies.

This exception is not applicable in the case of the separate set of rules in election law: the foreign national spending ban. Such an exception does not appear in the relevant regulation. What appears there instead, without any such escape hatch, is the prohibition on providing the foreign national with “substantial assistance” in contributing any “thing of value” to influence an election. The ban applies to both “direct” and “indirect” support from the foreign national for the benefit of the campaign.

The application of the foreign national rules to reach even the public sharing of information is consistent with its broad purposes as a national security measure.  It is built to different specifications than the ordinary contribution limits in accommodating free speech concerns.  It necessarily assigns these concerns less weight in cases presenting this high-order government interest–an interest which the court in Bluman v. FEC called “fundamental to the definition of our national political community.”  A case brought under this provision may rest in part on open, indirect. “wink-and-nod” collusion in way that one involving only US nationals simply may not.  And this application would have special force where it is the candidate or his campaign soliciting a foreign government’s support.

How this provision should be read to constrain the conduct of a candidate seeking foreign support is not just one more esoteric question emerging from the surprising and unconventional 2016 Trump campaign.  The reality is that foreign government interventions are not unusual. As one commentator has noted, referring to a major study of this topic,  many of the means governments employ to influence elections in other countries are not “as crude as bags of cash,” but include “training locals of the preferred side in campaign techniques, covertly disseminating damaging information or disinformation about the other side, or providing or withdrawing foreign aid to influence the vote.”  In other words, these are “things of value,” and we can expect more of the same.

 It seems odd, and in the end fatal to the utility of the law, to allow a candidate to openly court these things of value.  The Trump campaign did just that.  It also spared no effort in hailing the importance it assigned to what the Russians were doing to help it, or to harm the Clinton campaign, or both. This was done in full public view and the story it tells is fairly complete; and yet we may still learn more through the investigation now in progress.

Evidence Supporting a Finding of “Substantial Assistance”

It follows that the evidence in support of the “substantial assistance” would be different in quantity and nature from what is needed for a “coordination” claim.  The evidence on the public record shows the Trump campaign encouraging the Russian activities and making active use of the hacked results.  If there is a doubt that this is enough, the answer is not to return to the coordination rules, devised mostly for other cases: This only confuses the issue.  Rather than only look “externally” for direct communications between campaign and foreign government, the investigation would focus its efforts more “internally,” on the campaign’s intent to build this de facto political alliance with Russia.

Some of the questions would be:

  • What do the records of the campaign–and the sworn testimony of campaign aides–establish about the strategic importance to the campaign of these Russian activities?
  • Did the campaign decide that it would not denounce the Russians, either on its own initiative or in response to press queries, because it did not wish to discourage them from continuing on their course?
  • Was the message intended for Russia discussed during preparations for the presidential debate, which would explain Mr. Trump’s special care in refusing to assign direct blame for the hacking to the government or to reject any assistance from the hackers?
  • What were the specific plans for active messaging around the hacked emails–in the press, in the preparation of surrogates for media appearances, and in the remarks prepared for or by the candidate for rallies and his own press interviews?

If there is evidence of this kind, it would match up with the known campaign and Trump handling of the Russia issue and answer any question of intent. The president’s open praise for the hacking, his stated “love” of Wikileaks, his refusal to condemn any state interference in the elections, could not be passed off as “Trump being Trump,” as the candidate just playing with the issue and relishing the coverage that came with it. Instead these actions, together with other evidence of intent that may still come to light, would represent the execution of a very specific campaign strategy to provide substantial assistance to the Putin regime’s program of intervention in an American presidential election.

 

[Editor’s notes: The introduction to this essay was slightly revised by the author after publication. 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 I and Part III of this series.]

Photo credit: Alex Wong/Getty

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About the Author

is a partner at the law firm of Perkins Coie and Professor of Practice and Distinguished Scholar in Residence at New York University School of Law. During 2010 and 2011, he was White House Counsel to President Obama.