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What Trump Jr. Did Was Bad, But It Probably Didn’t Violate Federal Campaign Finance Law

 

The disclosure of emails documenting Donald Trump, Jr.’s arrangement of a meeting with Natalia Veselnitskay has lots of people asking whether he or the Trump campaign violated federal campaign finance law.  The pivotal question is whether they illegally solicited an in-kind contribution from a foreign national by attempting to get dirt on Hillary Clinton from a Russian national, including incriminating documents.

Although some outstanding lawyers contend otherwise, I don’t think federal campaign finance law prohibits what Trump Jr. did.  If it did, then  the Clinton campaign would also have broken the law had it sought information from non-U.S. nationals to investigate the claim that Trump Tower was built with undocumented workers.  That interpretation of the law would raise very serious concerns concerning the free flow of political information.

The better view is that meeting with a foreign national to obtain information on a rival doesn’t generally violate federal campaign finance law, at least not without more.  A different analysis should apply when items with a demonstrable monetary value are given or sought, but that doesn’t seem to be the case here given the vague description of the information offered to Trump Jr.

 

The Foreign Contributions Ban

It’s helpful to start with the language of the federal statute. In addition to banning contributions from foreign nationals, federal campaign finance law prohibits the solicitation of contributions from them:  “It shall be unlawful for . . . a person to solicit, accept, or receive a contribution or donation … from a foreign national.”  52 U.S.C. § 30121(a)(2).  Note that this ban isn’t limited to agents of a foreign government.  It prohibits contributions from any non-U.S. citizen who isn’t a permanent resident.   Accordingly, Ms. Veselnitskay would be considered a foreign national if she’s not a U.S. citizen or permanent resident, regardless of whether she was working on behalf of the Russian government.

Trump Jr. certainly appears to have been soliciting something from a foreign national, but was it a contribution?   Contributions usually come in cash, but can take other forms as well.   Federal campaign finance law defines a “contribution” to include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office . . .”  52 U.S.C. § 30101(8)(a) (emphasis added).  The italicized portion thus includes what are commonly referred to as in-kind contributions:  things of value that someone might give in lieu of money, typically to evade the restrictions on campaign contributions.

It looks like the Trump campaign was trying to get something of value – specifically, damaging information on his opponent – from a foreign national.  Bob Bauer suggests that this type of conduct (if proven) could potentially rise to the level of coordination with, substantial assistance to, or aiding and abetting of a foreign national  in violation of federal campaign finance law.  And Common Cause has filed complaints with the Federal Election Commission and Special Prosecutor’s Office, claiming that Trump Jr. and the Trump illegally solicited an in-kind contribution from a foreign national.

The critical legal question is whether the information that Trump Jr. sought from Veselnitskay was an in-kind contribution.  It doesn’t matter that he wasn’t ultimately able to get the dirt he wanted – solicitation is enough … but only if the sought-after information was a contribution.

 

Is Information a Contribution?

Federal law defines a contribution to include a “gift, subscription, loan, advance, or deposit … made by a person for the purpose of influencing any election for federal office.”   Let’s assume that Trump Jr. and Veselnitskay both understood that the purpose of their meeting was to exchange information that could be used to influence the presidential election.  It would be odd to describe such information-sharing as a “gift, subscription, loan, advance, or deposit … made by” Veselnitskay.  One can make a monetary contribution; one can also make a contribution that takes another form – like giving a candidate an office building in which to house her campaign free of charge.  But we wouldn’t ordinarily describe sharing information as making a gift or loan, at least not without more.

That said, information might be deemed an in-kind contribution in some circumstances.   As Rick Hasen notes, the FEC has previously determined that polling data, election materials from previous campaigns, and contact lists of activists can be in-kind contributions.  It’s easy to see why:  if these types of things weren’t considered in-kind contributions, then it would be really easy to skirt federal campaign finance law.  All of these things have “substantial market value” (as the FEC’s General Counsel put it) to election campaigns.  Candidates or parties would ordinarily have to shell out money to get them.  If a foreign national or maxed-out donor could give such things away for free, it would open up a huge loophole in federal campaign finance law, including not just the foreign national ban but also dollar limits on contributions from U.S. nationals.

On the other hand, there’s judicial precedent that appears to understand the foreign contributions ban as limited to monetary donations.   In Bluman v. FEC, the federal district court in D.C. upheld the ban against a constitutional challenge, in a decision that was later affirmed by the U.S. Supreme Court.  The district court emphasized the narrow scope of the statute, saying that it “does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues” but only prevents them from “providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.”  At the end of its opinion, the court expressly reserved the question whether a broader restriction on foreign nationals’ speech would be permissible.

If it turns out that the Trump Jr. and Venelnitskay coordinated on express advocacy expenditures – for example, communications specifically advocating the election of his father – that would be one thing.  But the emails don’t prove that.  The big question is whether information-sharing should be considered a contribution.  Bluman suggests that it shouldn’t

This brings us to the most important reason why federal law shouldn’t be construed to prohibit Trump Jr.’s attempt to obtain information from Veselnitskay.  While there’s no doubt that the dirt Trump Jr. was seeking could potentially have had value to his father’s campaign, it would seriously restrict the  flow of political information if campaigns were prohibited even from speaking foreign nationals in pursuit of information about  their opponents.   After all, candidates are the ones with the strongest motivation to seek out negative information about their rivals.  While some might find opposition research distasteful, candidates must have some room to investigate their opponents if the electorate is to be adequately informed.   We can’t rely exclusively on the media to perform this function, especially in down-ballot elections that get less press than presidential elections – and especially in an era where local papers newsrooms around the country have downsized dramatically.

Denying candidates the opportunity to interview foreign nationals would thus be detrimental to the central First Amendment interest in the free flow of political information.   One example is the hypothetical mentioned at the start of this post, the Clinton campaign seeking information from undocumented immigrants allegedly used to build Trump Towers).   We can also imagine comparable attempts to obtain information in congressional races.    Suppose for example that a House candidate gets a tip that her opponent’s business is violating the wage and hour restrictions of the Fair Labor Standards Act, by underpaying undocumented workers.  If her campaign staff interviews those workers, it would be violating federal campaign finance law.  That simply can’t be the law, not without chilling candidates’ investigations of their opponents and compromising the core constitutional interest in an informed electorate.

One might try to draw a line between oral and written communications, on the theory that documents (like polling data or activist lists) are more likely to be used to make an end-run around contribution limits than conversations.  Recall that Trump Jr. was apparently hoping not only to talk with Ms. Veselnitskay but to get incriminating documents from her.  An oral/written information distinction would provide a reasonably clear line, but not a good one.   Documents can often establish wrongdoing in a way that a person’s oral statements can’t.  Accordingly, they’re at least as important to the free flow of information.  Distinguishing oral and written communications would also provide an easy loophole for those seeking to make valuable in-kind contributions: convey the information orally but don’t create a paper trail, and you’re in the clear.

To be clear, my claim isn’t that Trump Jr. had a constitutional right to do what he did.  Professor Hasen makes a strong argument he didn’t, especially given that he has reason to believe he was meeting with an agent of the Russian government (a point addressed further below).  My claim is that construing the solicitation ban so broadly as to encompass all attempts at information-seeking from foreign nationals would raise serious constitutional problems.  As Eugene Volokh notes, laws that are substantially overbroad in restricting speech are struck down on their face, even if they could constitutionally be applied in the case at hand.  Federal campaign finance law should thus be read in a way that will avoid that outcome.

All of this reveals a conundrum at the heart of the ban on foreign nationals’ contributions.    There are strong reasons to treat information as an in-kind contribution in some circumstances, as when costly polling data is given to a candidate for free.  But it would raise serious constitutional concerns if all potentially valuable information were deemed a contribution.  To interpret the statute in this way would compromise the free flow of political information.  That means the answer to the question whether information is a contribution can’t be an unqualified “yes” or “no.” It has to be “sometimes.”  But where should the line be drawn?

 

The Solution

Determining what types of information should be deemed contributions is a really hard question, given the strong interests in both directions – preventing evasion of contribution limits on one side, and protecting the free flow of political information on the other.  My tentative answer is that the ban on in-kind contributions should be understood to reach the sorts of campaign commodities that have a determinate monetary value in the marketplace.  This isn’t a bright line, but it’s one that reconciles the competing values in play.

Focusing on items with a determinate value is consistent with the central purpose of campaign finance regulation:  to keep money from being transformed into political influence.  Traditional libertarians tend to understand this purpose narrowly, as more-or-less confined to the exchange of cash for specific official acts like a vote on a bill.  Egalitarians like me understand it more broadly, as encompassing other ways in which concentrated wealth can be used to exert political influence on elections and governance.  Either way, the central way is we shouldn’t allow people to use money to buy certain political outcomes.

This explains why it makes sense to understand the sharing of polling data or donor lists as an in-kind contribution, but not just conversations with a non-U.S. national who might have damaging information on a rival.   Polling data and donor lists are often bought and sold for money on the market.  Giving away these things for free is an easy way to circumvent contribution limits, allowing the conversion of money into influence in a way that campaign finance law is designed to stop.  Comparable risks don’t exist with the meeting that Trump Jr. engaged in nor with the vaguely described incriminating documents he was offered, based on what we know at this point.  Nor would they exist if the Clinton campaign interviewed undocumented workers who helped build Trump Tower or tried to obtain documents supporting this allegation.

This isn’t to deny that incriminating information on an opponent has value to a campaign, which in some cases can be measured dollars.  The FEC could help clarify the line through rules, advisory opinions, or enforcement decisions.  Though its current pattern of partisan deadlocks might make this seem unrealistic, the FEC could play a valuable role by itemizing the types of information that would presumptively be considered in-kind contributions and giving safe harbor to information outside of those categories.  It’s possible that some forms of opposition research might be deemed in-kind contributions, especially where an outside business agrees to perform it at no charge or a reduced rate.  But absent such guidance, I don’t think the information Trump Jr. sought should be deemed an in-kind contribution, given the vagueness of what was dangled before him.

That said, I agree with those who claim what Trump Jr. did is worse than campaign staff interviewing any old noncitizen.  The reason it’s worse is that Veselnitskay may have been more than just a foreign national.  She was described in one of the emails to Trump Jr. as a “Russian government attorney” and may have been acting as the Kremlin’s agent (though she denies it).  Meeting with a known agent of a foreign government – one whose interests are diametrically opposed to the U.S in many respects – is a lot worse than meeting with an ordinary noncitizen.  It smacks of potential collusion with a foreign power to influence a federal election.

A statute targeting coordination with a foreign state or its agents would probably be constitutional.  Perhaps there’s a statute already on the books that can be read in this way – I’ll leave that to national security and criminal law experts.  The analysis provided here is limited to federal campaign finance law, which bans contributions from all foreign nationals, not just those who are acting as agents of a foreign state.

There are legitimate concerns that the Trump campaign colluded with agents of the Russian government to influence the results of the 2016 presidential election.  Those concerns deserve a thorough investigation.  But without more, the Trump campaign’s apparent attempt to obtain vaguely described information from a Russian lawyer doesn’t violate federal campaign finance law, not without twisting that law in a way that would do damage to the core democratic value in a political discourse that’s “robust, uninhibited, and wide-open.”

 

Image: David Becker/Getty

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About the Author

Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at Ohio State University's Moritz College of Law Follow him on Twitter (@Title52Law).