The news cycles are busy with revelations about the Trump campaign-Russia-WikiLeaks connections, and they may be moving more quickly than the capacity to absorb their legal significance. With each revelation, there is a rush to ask whether the new piece of information is somehow the “smoking gun,” or not a major advance in the case, or–as the Trump campaign would have it– proof that this is much ado about nothing.
The WikiLeaks-Trump Jr. correspondence has passed through this round of commentary. I thought that these Twitter exchanges unquestionably deepened the campaign’s legal exposure to liability for aiding illicit foreign national activity in U.S. elections. It seemed to me, as I wrote, that “the facts and circumstances here are without precedent” and that “it is hard to imagine that any truly neutral analyst informed about the law would conclude otherwise.” And yet there are highly knowledgeable scholars and observers who do not apparently see things this way.
Skeptics included experts such as Paul Ryan and Rick Hasen. Ryan saw nothing especially powerful in the contacts: no evidence, as far as he was concerned of “anything of value” that the campaign solicited or received from the Russians via Wikileaks. He believes that compared, say, to the revelation of the Trump Tower meeting, the Trump Jr.-WikiLeaks exchanges to be “small potatoes.”Hasen has doubted that Wikileaks’ activity was even part of the legal story. He sees it as potentially a foreign media organization operating like any other news entity in receiving and distributing information from various sources, including the Russian government.
This is not to say that either Hasen or Ryan doubt that there is evidence of a campaign finance violation in the public reporting to date on the Trump campaign-Russia connection. Both have identified serious issues raised by the June 2016 Trump Tower meeting between senior campaign officials and Kremlin emissaries. , But they hesitate to assign much independent weight to the WikiLeaks correspondence. And on that we disagree,
So what are the reasons for the disagreement? Of course, lawyers can dispute the law and its application to a particular set of facts, as we do–all the time. But the difference in outlook in this instance is worth exploring. This difference turns on how any new evidence is evaluated–either more or less in isolation, or in relation to others within the emerging picture of the Russian-Trump campaign alliance.
It is crucial to keep this picture in view. This is a case in which, in the face of specific federal law prohibitions on foreign national contributions, a presidential campaign openly welcomed the intervention of a foreign power and communicated private encouragement and support of the specific steps Russia and its agents, including WikiLeaks, took to intervene. On further investigation into matters like the revisions in the GOP platform on Ukraine, it may turn out that the campaign rewarded its Russian ally with changes in policies for which the Putin regime was actively agitating. It seems that many of those unconvinced that there is a serious legal problem approach this case like a garden-variety campaign finance question, taking each disclosure in turn and trying to determine whether it somehow “makes the case.” The law prohibits a foreign national from providing a campaign with any “thing of value,” but they are unsure that the materials the Russians stole and disseminated qualify as such. The law prohibits coordination between a campaign and a foreign national, but they don’t see the public appeals for Russian support, reinforced with private messaging such as Don Jr’s emails with WikiLeaks, or meeting with Kremlin emissaries, as quite fitting within the statutory definition. Rather than judge Wikileaks as has the Director of the CIA–as a “hostile non-state intelligence service” –they picture it more as an informational site available for third-party posting.
But this is not a garden-variety campaign finance case. In such cases, the state’s regulatory interests are painstakingly balanced against citizens’ constitutional rights. In the Trump-campaign Russia relationship, the balance is not the same, for the indisputable reason that Russia has no constitutional right to participate in a US election and the Trump campaign has no such right to solicit or receive the benefits of that participation.
Congress and the Foreign National Prohibition
The Trump campaign might try to plead vagueness in the law and in so doing salvage something of a constitutional claim. But Congress twice since 1974–in that year and again in 2002–established that (absent a specific exemption) it would brook no involvement by foreign nationals in federal elections. And by none, it meant “none.” The sponsor of the original provision, Senator Lloyd Bentsen of Texas, declared that foreign nationals “had no business” in US elections. (120 Cong. Rec. 82083 (1974)).
Sixteen years after the enactment of the prohibition, Bentsen held hearings to further emphasize this no-tolerance policy. At that time, he was mainly worried about the ongoing activities of foreign-controlled US subsidiaries that maintained political action committees for the purpose of making contributions and expenditures in federal elections. He proposed a bill that would have prohibited the establishment of PACs by companies with more 50% foreign ownership.
That measure did not pass, in part because opponents argued that the existing law established adequate protections against any foreign national involvement in the operation of subsidiary PACs. And there is indeed a rule, long on the books, that denies foreign nationals any “participation” whatsoever in the operation of a USA subsidiary PACs. The PAC was to be an all-American enterprise. Americans would set up the PAC, supply the money and choose the candidates to receive the contributions. So they had constitutional rights as U.S. citizens presumably protected by giving them access to PAC activity. But the condition was no foreign national involvement in PAC expenditures.
Congress returned to the subject yet again, in 2002, in the Bipartisan Reform Act of 2002 (McCain-Feingold). Congress was concerned about the emergence of a major loophole in the form of “soft money” donated from foreign sources to the political parties. Congress voted to close this avenue of foreign influence. Once again, the legislators arguing for the bill spoke of the intended sweep of the statutory prohibition–“to make it,” as one Senator stated on the floor, “100 per cent clear that foreign nationals cannot contribute to U.S. political parties or candidates in any circumstances.” 147 Cong Rec. S2423 (2001)(Rep. Kirk). Much of the focus was on preventing foreign government activity. The debates included emphasis on the need to eliminate the negative influence of governments in our nation’s democratic process.” 148 Cong. Rec. H355 (2002)(Sen. Specter).
So the law as amended is crafted to provide for broad protections against foreign national electoral interventions. It applies not only to donations or spending of any “thing of value,” but also to an “express or implied promise” to supply any such campaign support. The U.S. candidate or party may not solicit, accept, or receive this support, and by FEC rule, may not provide substantial assistance to a foreign national in making campaign expenditures.
When Congress’s constitutional authority was challenged in Bluman v. Federal Election Commission, a three-judge district court affirmed the breadth of the legislative branch’s regulatory power to address foreign national electoral spending. At stake was the very definition of the American “political community,” the District Court averred. The Supreme Court affirmed. And we are speaking in this instance of two individuals bringing suit to make a direct contributions, even in modest amounts. This interest in the integrity of the American political community applies with specific force to foreign government electioneering.
The Trump-Russia Alliance in 2016
Now in 2016 we have a presidential campaign meeting at the highest levels with representatives of a foreign power to examine whatever damaging information they had to offer on the opposing campaign. The son of the candidate “loved” the prospect of that government’s injection of the material into the campaign, but noted that it would be most effective if released in the late summer. He then assembled the campaign’s top brass, including Paul Manafort, to meet in person with the Russian government attorney, and he admits to “pressing” her for that information during the meeting. And this was one of two private Russian offers of this negative material, one of which–conveyed to a foreign policy adviser to the campaign–noted specifically that it consisted of emails.
Over this same period, when it was known that WikiLeaks was motivated by anti-Clinton objectives and functioning in league with the Russian government to undermine her campaign, the Trump campaign had direct, private communications with Assange’s group. The campaign offered to help with distribution of the material and it did. It sent in unmistakable terms a message to WikiLeaks and its foreign state ally that it welcomed this support for the campaign and to undermine Clinton. The campaign’s public statements reinforced the message to Russia and Wikileaks: we’re in this together and keep it coming.
For purposes of the legal analysis, WikiLeaks and Russia are one and the same. WikiLeaks was acting on behalf of, or in league with, Russia in disseminating the emails and, as noted, they shared the objective of undermining the Clinton candidacy. Russia paid for collecting the content; WikiLeaks handled the distribution. It was a foreign national partnership, in which one of the partners was a foreign government, to influence the 2016 election.
It is against this background that the application of the interpretation of the law necessarily takes place. Elsewhere, I have written about the rules barring “substantial assistance” to a foreign national’s illegal spending in U.S. elections. And there is criminal law doctrine to support an “aiding and abetting” case, even on the evidence so far publicly known.
In addition, there is the legal question of “coordination.” Unlike “collusion,” which is not a legal term of art under the campaign finance laws, the law provides that expenditures coordinated with a candidate are contributions to that candidate. So coordinated foreign national expenditures, illegal in and of themselves, are also illegal contributions to the candidate.
Did the Russians spend money–that is, is make “expenditures”– to influence the U.S. presidential election in Trump’s favor? There can be no question of this: Russians expended resources in various ways, from the expenses of travel to the Trump Tower meeting, to the spending required to hack and accomplish the distribution of its purloined emails. The Russians also paid for Internet advertising and the staff time to run social media accounts and produce organic posts. The Russians’ purpose of influencing an election was not concealed: it was communicated directly and unequivocally to representatives of the Trump campaign.
Did the Russians “coordinate” this spending with the campaign? The law broadly provides that coordinated spending is a contribution, and it sets out two standards. One applies generally to spending of all kinds, and the other specifically to spending for “public communications.” There are some variations in language, but it is fair to say that a campaign that in private communications signals that it welcomes certain spending for its benefit has invited an inquiry into illegal coordination.
It is not a requirement that the candidate suggest the spending in the first place, but if the spending is any part or in any way done “in concert” with the spender, it may well be considered coordinated. When Trump Jr. shows his willingness to have the campaign push the same messaging as Wikileaks, then uses a specific link that WikiLeaks provides for that purpose, the campaign and the site may properly be seen to be acting in concert. And the President did the same urging, without the link, within 15 minutes of the WikiLeaks request to his son.
The public communications standards include also the element of “assent” as a basis for a finding of coordination. It looks to whether a campaign, even if it did not request a specific expenditure, communicated its “assent.” There is reasonable basis under the rules to construe both standards to cover “assent,” understood by basic (Oxford) dictionary definition as “approval, acceptance, endorsement, encouragement” and “support.”
Throughout these communications, the campaign is expressing gratitude for the support and indicating a desire for more of the same, and WikiLeaks is getting the message. Trump Jr. inquires about the next release that he has heard something about; WikiLeaks informs him of the posting of the fourth batch of Podesta emails. The alliance they have struck is further manifested by WikiLeaks’ assistance in flagging for the campaign an anti-Trump site and providing help in identifying the source. “Thanks,” replies Don, Jr. Within a couple days of Don Jr.’s inquiry into the timing of the next Podesta email publication, which follows shortly afterward, the President waves a printout of an email stolen by Wikileaks, and proclaims, “This just came out. Wikileaks! I love Wikileaks!,” Wikileaks then privately texts Don, Jr., “Hey Donald, great to see you and your dad talking about our publications.”
With the daily onslaught of news and remarkable twists and turns in this tale, it is all too possible to let any one of these documented contacts explode onto the scene and then fade away as another story, or another tweet, crowds it out of the national consciousness. Then the exceptional content of any one revelation becomes “yesterday’s news” and it is not always brought back and connected to what comes next.
Consider a key email Trump Jr. received from Rob Goldstone who was organizing the Trump Tower meeting that came to pass in June of 2016. Here it is again, worth quoting in full:
Emin just called and asked me to contact you with something very interesting.
The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.
This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump – helped along by Aras and Emin.
What do you think is the best way to handle this information and would you be able to speak to Emin about it directly?
I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.
Begin with the basics: This email frankly stated that the Russian the government is supporting the Trump campaign and ready to provide it with specific help. The author also seems confident that if necessary he could send the message directly to the candidate. One might think someone delivering this message-which he characterizes as “ultra sensitive”–would step carefully forward, testing gingerly to see whether the Trump campaign would be open to the offer and comfortable with having it recorded so baldly. But Goldstone seemed quite confident that Trump Jr. would respond affirmatively. And he was right.
Not only did Trump Jr respond with gratitude, saying how much he “loves” the gift-bearing Russian, but he scheduled a meeting with the campaign’s senior staff and it happened. To date there is no indication that anyone in the campaign raised a question about the legality or propriety of the meeting, or more generally, of entering into campaign collaboration with the Russian government.
This is in June. By fall, Trump Jr. is on line and giving encouragement and assistance to WikiLeaks, by then known to be the publisher of the Russian hacked materials. So it is plain that, from June to September, no one had tried to deter the candidate’s son from milking this alliance. The campaign had made a decision to open up and extract the benefits of a direct line of communication with Russia and its agent, WikiLeaks. There is a prime example of how the WikiLeaks communication and others involving the Trump Tower meeting connect in laying bare the understanding that the Trump campaign had reached with Russian and its agents.
This alliance of a campaign and a foreign government is unprecedented in campaign finance law enforcement. It is also impossible to come to terms with the legal issues without paying attention to a central fact: the Russians and WikiLeaks could have proceeded without direct contacts with the Trump campaign, and yet chose to enter into direct campaign-related communications with it, and the campaign responded affirmatively. This was advantageous to both sides. The Russians and WikiLeaks could test for the campaign’s approval, which would later presumably translate into gratitude, and the Trump campaign could urge their allies on, leaving them with no doubt that the intervention was welcome. This is the very heart of a coordination scheme. Given the breadth of the foreign national prohibition, it is hardly a stretch to find the makings of a major–and criminal–campaign finance violation on just what has emerged so far on the public record.
One of the purposes of the 2002 reform was to capture “coordination” achieved through a “wink and nod,” and the Congress acted specifically for this reason to repeal the requirement that a formal agreement was required for coordination to occur. The law and rules track various means of coordination short of formal agreement. When the question arises in the relationship of entirely U.S. actors, there are difficult constitutional issues of free speech and association. Those issues have far less force–and present considerably less of an impediment to enforcement– where the “winking and nodding” takes place between a presidential campaign and a foreign government.
The Trump Campaign, the Russians and Campaign Finance Law
The campaign finance issues may not prove to be central to the final accounting of the Trump-Russia issues. But it is hard to see that they would be peripheral. The law in question here rests on a powerful state interest to protect against foreign governmental interventions in our politics. The intelligence community had concluded that Russia embarked on just such an intervention and few now–other than Donald Trump, Carter Page, and Michael Cohen–disagree. And the evidence is building that, for its part, the Trump campaign entered into an active alliance with the Russian government and its agent, WikiLeaks, communicating through public but also private channels that it was glad to have the help. The campaign also met directly with Kremlin emissaries in this common political enterprise.
So this is not a garden-variety campaign finance case. It is far more than that, and there is law, that Congress went to great lengths to strengthen only 15 years ago, that supports a criminal inquiry. Donald Jr.’s emails with WikiLeaks are the latest in a series of disclosures that, taken as a whole, tell a story of this exceptional campaign engagement with a foreign power.