If “Love” Knows No Bounds: On Criminal “Intent” and the Scope of Campaign Finance Law

If the Trump campaign solicited support from Russians in the race against Hillary Clinton, did it, or any of its staff, have the mental state required for prosecution under federal criminal law?  The discussion so far has largely centered on Donald Trump Jr.’s actions in scheduling the June 9, 2016 meeting at Trump Tower, and for a number of commentators, the issue seems to be his own personal liability.  Professor Andy Grewal has made the point that the bar for establishing criminal intent is high. He is not alone in this judgement. Professor Saikrishna Prakash agrees.

It is without doubt correct that people should not go to jail for breaking a law unless the rule they violate is clear and they had the requisite intent to violate it. This is, of course, especially imperative when they are engaged in core First Amendment-protected activities like participating in a political campaign.

In the case of the June 2016 Trump Tower meeting, however, this argument can be–and has been– both overstated and misdirected. Now that Jared Kushner has provided his account of the meeting, there is additional material useful in analyzing the campaign’s culpability.

Moreover, in sorting out these issues, it is essential to keep in mind what conduct the campaign finance law does, or does not reach. Commentators like Professor Prakash and Eugene Volokh fear that even if the Trump campaign, its candidate and it senior staff sought and received Russian Government help, an overly expansive construction  of the campaign finance laws to reach this conduct could present major constitutional risks. For example, journalists might be liable for seeking or accepting from foreign nationals information intended to damage a political candidacy.  These concerns are also off the mark, because the there is nothing exceptional or overbroad in a reading of the law that covers the Trump campaign conduct.

The Question of the Campaign’s Intent: Evaluating the Denials and the Kushner Account

The overstatement may occur if too much stress is put on complexity or obscurity of the law. The foreign national prohibition has been on the books for years.  It is fair to say that it may not be straightforward in all its applications.  For example, a foreign national with a green card can contribute to a campaign. As the Supreme Court affirmed in Bluman v. Federal Election Commission, foreign nationals may speak out on issues, including “issues speech” –speech on public affairs that does not involve an appeal to support or oppose particular candidates, but that could influence voters. But there is a clear statement in the law that foreign nationals cannot contribute or spend to support (or oppose) candidates, and they cannot be solicited for that support, and it standard “industry” practice for the compliance operations of presidential campaigns to state the prohibition in clear terms for their donors and their staff.

At the least, when a foreign government has apparently declared its support for a candidate and schedules a meeting with emissaries from Moscow in partial implementation of the commitment, Mr. Trump Jr. might know enough to inquire about the legal issues and risks. To the contrary, his response was immediately that he “loved” the proffer of support. He further suggested that perhaps the Russians could release the  information for maximum effect later in the summer. He then had days to reflect on the meeting, its stated purpose and the campaign’s response. His “love” apparently knew no bounds and he went ahead with the meeting.

These facts do not position Mr. Trump Jr. favorably in an assessment of intent.  We also don’t know the answers to other relevant questions, like the briefings Trump, Jr. may have received on the law or the memorandum on legal compliance requirements that are routinely circulated by counsel in presidential campaigns.

No one can doubt that Trump Jr. and his lawyers would make a run at disproving intent. It is going too far to say that they will succeed.

It is also worth noticing that when the campaign first responded to reports of the meeting, they denied knowing that the lawyer with whom they met with was Russian. They have also consistently failed to give a full accounting of all the Russian representation at the meeting. And, of course, long ago (including within a few weeks after June 9), they denied across the board that they had ever met with Russians. There was apparently some sensitivity on the point of a political partnership with the Russians, which is inconsistent with the claim that a meeting like this with a Russian foreign government offering its support was nothing extraordinary and raised no legal issues–a meeting, the President has said, anyone would have taken. To this moment, moreover, there is no indication that campaign counsel was consulted on the meeting, before or afterward; or perhaps such a consultation did take place and it is not in the interest of the Trump campaign to say anything about it.

Here the Kushner statement from yesterday fits with a narrative of a campaign organization open to Russian support but well aware that this venture was in no way ordinary. On the one hand, Kushner explains that he knew nothing of the purpose or the attendees meeting, found it useless, and then left after texting a staff member with a request that he be called on his cell and given a pretext for leaving.   But, on the other, this assertion of personal ignorance sits uneasily with his account of his role in managing relationships and communications with foreign countries and the manner in which he operated.  The culture of the campaign, he explained, was a “nimble” one, and within that space, it was his practice to ask advice as needed as he acquired “more and more responsibility.”  He presents a picture of a campaign that ran well.  Yet, even after he leaves the meeting, Mr. Kushner does not inquire into the reasons for the meeting or for the request that he attend, or into the interests advanced by the Russian attendees and the follow-up, if any, from the campaign.  Instead he wanted to get out quickly and have nothing more do with it, by his own account.

These are among the legitimate, unanswered and troubling questions about the campaign’s state of mind in dealing with the Russian overture.  And this is a question about the campaign, the collective enterprise—not only or simply about Trump, Jr. or any other member of the senior staff.  The arguments of commentators that focus on Trump Jr., or on any staff member are, for that reason, misdirected.  The June 9 meeting was a campaign meeting, organized for campaign purposes by senior management and advisers. The Trump campaign, as a legal entity, has exposure. The campaign was a large operation represented by expert and experienced counsel. It’s compliance operation presumably screened contributions for foreign national, among other impermissible, contributions. It would have a challenging–probably impossible– task in relying on “ignorance of the law” as a defense.

There is another issue overlooked in analyses of whether the meeting scheduled and attended by Trump Jr. and others resulted in a violation of the law. Apart from specific questions of personal liability, the meeting more generally suggests the readiness of Trump campaign officials to work with the Russian government toward the shared goal of electing Donald Trump. Taken together with other facts, some known and others that come to light, it is unquestionably an event of legal significance.

The Question of the Breadth of the Campaign Finance Laws

The doubt expressed about the exposure of Trump Jr., or the campaign, under the campaign finance law seems in part motivated by a concern with reading it too broadly. Both Professors Prakash and Eugene Volokh have hoisted this red flag.  Here, too, as in the case of intent, the caution is justified. It is also, on the grounds they have staked out, misplaced.

Volokh remains troubled that, if the prohibition covers information as a “thing of value,” the foreign national ban suffers from major overbreadth problems.  He asks: what of a foreign businessman who shares with the New York Times information damaging to a candidate? If the information is an “expenditure” under the law, which includes “something of value,” then both the businessman and the paper face criminal liability.

This is an incorrect reading of the law. The FECA would not reach information given independently to a news organization. The motive behind giving the information–to influence an election–is immaterial.  The foreign national can engage in “issues speech,” and offering the newspaper information about a candidate’s business history or personal behavior falls unquestionably within that category. Put the other way around, the law does not apply because the communication with the newspaper does not constitute “express advocacy,” or its functional equivalent, by which the foreign national underwrites communications to the public which advocate the election or defeat of a candidate. To inform a news organization, for example, that a candidate received illegal loans for a business enterprise, is not equivalent to a declaration to the voters that “he should be defeated for that reason,” or “that is why his opponent should be the next American president.”

This is also the reason why the law does not prohibit a candidate from interviewing foreign nationals in developing its own opposition research. The campaign is not inducing the foreign national to engage in campaign speech, for the campaign’s benefit.  It is not, for example, contacting a foreign national to ask it to spend resources on a mailing or to arrange for Internet communications promoting the candidate (or attacking the opponent).  The campaign is seeking information that it will translate into its own speech.  If the foreign national supplies information at the request of the campaign, say, about the businessman’s practices, it is engaged in issues speech–speaking as it would if it gave the same information to a news media organization.

Moreover, contrary to Professor Volokh’s fear, the FEC would almost surely decline under the “media exemption” any interpretation of the law impeding a media organization’s news reporting.  The FEC has given this exemption the broadest reading, as in a 1984 Advisory Opinion that allowed them to make a block of time available to each major political party for political commentary.  More recently, it authorized a cable company to provide free advertising time to federal candidates, stating that “the commentary exemption would allow third persons access to the broadcast media to discuss issues from a highly political and partisan perspective.”  There is no support in the precedent developed over years that the FEC would find a news organization liable for receiving or soliciting information of news value from foreign sources. And that exemption does not limit the application of the foreign national ban to campaigns and candidates themselves.

The foreign national prohibition is very broad, but even a foreign national may speak with a campaign about matters even more directly related to the campaign. In a 2007 Advisory Opinion that has received much attention, the FEC counseled that the foreign national prohibition had “broad scope,” but specifically authorized a campaign to interview Canadian nationals with experience in successful third-party candidacies. It was not suggested that the Canadians were supporters of the relevant candidate, only that they possessed information useful to the candidate and the candidate’s own speech.  The FEC did not find that their supplying the requested information was “for the purpose of influencing” an election within the meaning of the law.  And the often-divided FEC was unanimous on the point, as the conclusion it reached was consistent with a long course of interpretation.

The agency and the courts have worked hard, and not by any means with consistent success, at assuring that the phrase “influencing an election” is construed to accommodate the very First Amendment concerns Volokh and Praskash express.  They have the recurring challenge of keeping the law from reaching too much “issues speech”–including speech that, while focused on public policy, could have an effect on voter choice. Volokh’s fear of an expansive definition of the statute takes no account of this history or the law it has generated.  The stage we have reached is hardly satisfactory, and Democrats and Republicans on the agency quarrel endlessly about it, but as the Canadian Advisory Opinion shows, they do not share the view that troubles Volokh and Prakash.

How then to think about the structure generally established in the law to maintain the necessary constitutional limits?  Here is an oversimplified statement.

Contributions to a Campaign. There is the simple matter of whether someone has contributed to a candidate. The interpretation is broad and includes “anything of value” that is given.  It encompasses information that has distinct value to the campaign as a campaign. An example is polling information, and someone has contributed valuable polling information even if he or she relays the data by phone or in conversation, but does not provide the hard copy of the pollster’s report with cross-tabs. 11 C.F.R. §106.4; FEC Matter under Review 6958 (2015)( enforcement action involving the oral communication of polling information).  Opposition research, which campaigns pay staff and consultants to produce, is also something of value.  In fact, early on, the FEC cited the legislative history of the law in making a specific allowance for party political committees to provide in-house research to their own candidates. The regulations also provide rules for allocating to contribution limits other types of information, like educational seminars. 11 C.F.R. §106.1.  This same regulation would cover training in the mechanics of developing opposition of research.

The nub of the “contribution” is it is given to enhance the candidate’s own speech. And in the usual case, that is it–it is just donated, and the contribution limits and reporting requirements are triggered and must be met.  Any good or service that the candidate pays for is not a contribution, unless the campaign pays less than the normal (market) rate.

Contributions as Coordinated Expenditures.  In this case, the candidate benefits from someone spending for her benefit, and the spending is not “independent” but “coordinated” with the candidate’s campaign. The rules are meant to protect independent speech–that is, not the candidate’s own, but that of the spender.

This protection is accomplished in two ways. First, express advocacy rules are meant to focus on true campaign speech and apply to both express advocacy–“vote for,” “vote against,” etc, and to what the courts term a “functional equivalent,”  which is an electioneering message involving a clearly identified candidate. Someone who wishes to complain about a candidate’s positions can do so if this “express advocacy” element is omitted. Second, the advocacy has to be independent, not coordinated with the candidate. In this second case, the rule simply recognizes that a candidate helping direct the expenditure for his own speech is no different than accepting the money first into her own account and then proceeding with the expenditure. All of these rules are designed to supply sharply defined meaning to the phrase “for the purpose of influencing.”

Of particular importance in the coordination rules–and relevant to any Trump campaign-Russian joint planning for the campaign–is the conception of a contribution or coordinated expenditure that results from a form of partnership. Unlike the normal contribution, just given, received and reported, coordination may include anything from the candidate simply informing the spender of what type of advertisement best serves the campaign, to a “material involvement” or “substantial discussion” between the campaign and the spender in devising an effective campaign communication. 11 C.F.R. §109.21. The spender shares an objective with the campaign and works hand in glove with the campaign to achieve the shared goal–the election of the candidate. There is much the same theory behind the corporate “facilitation” rules, which distinguish a corporate employee’s or officer’s individual volunteer campaign activity, from a concerted corporate initiative to raise money in collaboration with a federal candidate. 11 C.F.R. § 114.9

So the well-established construction of the campaign finance laws does not support Professors Prakash and Volokh’s concerns about the breadth of the foreign national ban as applied to the 2016 Trump campaign facts.  Journalists would not be at risk, nor would campaigns face liability for obtaining information from foreign sources for opposition and other research.   Foreign nationals, moreover, remain fully able to exercise their speech rights–“issues speech”– recognized by the Court in Bluman.  This includes a foreign national who wishes to weigh in on a trade or foreign policy issue in the middle of a campaign, even if the positions taken could influence voter choice.

What the foreign national may not do is establish a partnership involving making coordinated expenditures with a federal campaign.  And the issue, again, is not whether Trump Jr. knew what he was doing, but whether the campaign did.  And for the organization, neither the plea of “ignorance of the law” nor the complaints about the breadth and uncertainties of the campaign finance law would likely be availing.

A Thought Experiment

A simple thought experiment should suffice.  Replace Russia, say, with The Government of the Netherlands, to remove the inflammatory engagement with the Putin regime. Imagine that the Dutch government is looking for a campaign finance lawyer to seek an Advisory Opinion from the Federal Election Commission approving a program like the one suggested in the June Goldstone-Trump campaign emails.  The lawyer toys with this opening paragraph:

The Government of the Netherlands (“the Government”) requests an Advisory Opinion on the question of whether, consistent with the ban on foreign national participation in a federal election, it may engage in discussions with the Trump presidential campaign to advance the Government’s program of support for Mr. Trump’s candidacy. The Netherlands actively supports the election of Mr. Trump and the offer of support it would propose to make to the Trump campaign is only a “part” of what it plans to do to achieve this electoral objective.  As set out below, the Government is seeking review of a specific initiative that involves meeting with the Trump campaign to share with it research on Mr. Trump’s opponent. The Trump campaign has authorized the Government to represent that it has reviewed this request and would welcome and accept this support if the Commission acts affirmatively on this Request.

Would any experienced campaign lawyer say that the FEC would approve this opinion?  Or that, knowing that the FEC would not, the client could take a chance, do it, and avoid criminal liability on a defense of “overbreadth?”  No one would, and on this question, we might expect unity across party lines. 

About the Author(s)

Bob Bauer

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)