Recent commentaries and press reports have tended to downgrade the prospects for a special counsel prosecution of campaign finance charges. Moving ahead of them in the Mueller speculation sweepstakes are obstruction of justice and, in some accounts, business crimes. No one knows, of course, what the special counsel, or the congressional investigating committees, have learned that has not appeared in the press. Steven Bannon’s outburst about the June 2016 Trump Tower meeting may have stoked fresh interest in the “collusion” issues. But it is useful to ask, and to question, why–knowing what we know and could reasonably expect to discover– the campaign finance dimension has generally encountered skepticism.
A former senior DOJ attorney recently offered me one theory for why the special counsel may hesitate to bring campaign finance charges. Mueller may fear that case is insufficiently concrete or direct to win over a jury. While the law bars contributions of any kind, including providing campaigns with “things of value,” a jury may struggle with the extraordinary circumstances of Russia’ support for the Trump campaign. Rather than make the more familiar cash contribution, the Russian government generated “things of value” in the form of hacked Clinton and DNC material that WikiLeaks then made public. There is no evidence that Trump or his campaign arranged in advance for the hacking, though they were plainly pleased and eager to have the support and conveyed their receptivity to the Russians.
This experienced attorney suggests that both factors–the nature of the “things of value” as stolen goods and the absence of direct campaign complicity in illegally acquiring them–will make prosecutors uneasy about bringing criminal charges. They may feel that the case is so “out there” that it lacks the look or feel of a campaign finance matter in any conventional sense of the term. It has not helped that the shorthand for the Trump-Russia connection has become “collusion,” which is not a legal term.
Prosecutors might well also worry that the recent history of high-profile criminal prosecutions under campaign finance laws is not encouraging. The aggressive case brought against John Edwards failed. In another more obscure prosecution, the government unsuccessfully sought to hold a fundraiser for the Clinton Senate campaign liable for lying about unreported “in-kind” payments for a campaign event. The jury in the Senator Bob Menendez prosecution deadlocked on multiple counts that included alleged corrupt pay-offs in the form of contributions to a Super PAC. Maybe juries, cynical about politics, nonetheless fear “criminalizing” it. Or this skepticism may cause them to distrust the prosecution more than the defense.
The question these considerations raise is whether there is any way to put clear boundaries around the term “things of value” and give it the heft it deserves, making it a firm basis on which to prosecute such a case. It is a fair question, to which there is a reasonably clear answer. It is not necessary to construct a theory that captures the notion behind “collusion” by making the case for illegal “’coordination.” One could, as there is a respectable case for coordination to be made. But there are two other clear grounds for federal campaign finance law liability: soliciting a “thing of value” from a foreign national, and “substantially assisting” the foreign national in spending to influence an election.
The Foreign National Rules
The law does not reach every “thing of value” a foreign national might provide to a campaign. However, the coverage of prohibited “things of value” is broad, subject to some specific exceptions. For example, the Federal Election Commission (FEC) has concluded that an individual foreign national may volunteer time or services to a campaign. The commission notably struggled with this question before resolving it, first deciding that foreign nationals did not have the benefit of the general exception from the definition of contribution for “uncompensated services.” It later concluded that they did.
What may have given the agency pause, driving the first negative judgment, was the legislative drafters’ intention to keep foreign influence entirely out of American elections. The lead sponsor of a key amendment to the foreign national ban, Senator Lloyd Bentsen, had declared that foreign nationals had “no business” in political campaigns.
After issuing inconsistent opinions, however the FEC ultimately came down on the side of reading the definition of “contribution,” along with the express exceptions, the same for foreign nationals as for U.S. donors. It relied on a specific exemption in the statute and rules. . Absent that exemption, the term “thing of value” is comprehensive: whatever is not “money” but is donated or spent for the purpose of influencing an election. Items of opposition research are clearly “things of value.” It is odd that there should be any question about this in the Russia-Trump case, given the evident importance in the campaign of the WikiLeaks hacks.
As my interlocutor suggested, the sticking point for some commentators may be the illegality of these “things of value.” Some may believe that while there is clearly a legal problem here, it is not a campaign finance problem. Nothing in the rule supports this line of argument or justifies this hesitation. If a candidate’s supporter were to steal a fleet of cars and vans for a get-out-the-vote drive, he would be donating a “thing of value.” Whether an item is valuable depends on the use of the good or service, not its origin. As a matter of enforcement policy, it makes little sense to give a campaign a pass on a violation of the campaign finance laws because the contributor or spender trafficked in stolen goods.
When the FEC ruled on the volunteer exception issue, the commission found that the legislative history supported applying the exemption to all contributions, whether made by foreign or U.S. contributors. That same legislative history supports a broad reading of the other “things of value” that foreign nationals are prohibited from providing.
Congress enacted the foreign national ban in 1966, and then amended it again in 1974 and 2002. The 1974 amendment was pivotal. Its purpose was to close a loophole that the earlier version had opened with the apparent effect of allowing foreign governments to give. The 1966 law could be read to apply only to US agents operating in American soil on behalf of their foreign principals. In the Watergate era reform, Congress was moved to act by concerns about the Nixon presidential campaign’s exploitation of this supposed loophole to accept directly from foreign national governments.
So in any choice between the broader and more limited reading, congressional purpose and intent would dictate the more comprehensive application of restrictions on foreign national intervention. The constitutional concerns that permeate so much domestic campaign finance questions have very limited place in the analysis. A foreign government has no First Amendment right to influence our elections, and campaigns have no such right to invite or accept their support.
A campaign may not solicit foreign national support, including any “thing of value.” The FEC rules define “solicit” in very broad terms. Implicit — not just explicit — requests for “things of value” are covered, and solicitation may occur “directly or indirectly.” Moreover, the definition does not center on words alone. The rule provides that a
solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.
For this purpose, the regulation makes clear, “the context includes the conduct of persons involved in the communication.” As the agency explained at the time of the adoption of the rule, solicitation does not “depend on the use of ‘magic words.’” And it explained that “words that would not, by their literal meaning, convey a solicitation, may in some contexts be reasonably understood as one.”
This was not how the FEC first wrote the rule when it assembled the regulation to implement the terms of the McCain-Feingold reform measure enacted in 2002. After a legal challenge, the agency, compelled to re-write the definition, produced the more expansive version. So the courts have already had a role in the construction of a rule with this broad reach, which should be reassuring to anyone who might fear that the agency was somehow going well beyond its brief.
The same FEC which has exempted individual volunteer activity has crafted a regulation, noted here previously, that bars U.S. nationals from giving foreign nationals “substantial assistance” in spending in American elections. This “substantial assistance” rule bears directly, in two distinct ways, on the breadth properly given to the definition of “things of value.” It is an exceptional regulatory tool for guarding against foreign national influence, one without analog in the rules that apply to purely domestic U.S. campaign activity. The regulations would be made to work against themselves if read to impose an extraordinary limit on assistance to foreign nationals while somehow narrowing the definition of “things of value” that a foreign national is prohibited from providing.
Assume that a campaign works with a foreign national to perfect the messaging of a storm of Tweets intended to have an effect on the electorate. It would make little sense to conclude that there can be no liability for “substantial assistance” because the tweeting was not a “thing of value” to the campaign. If the campaign provides substantial assistance to the foreign national in electoral activity, then it has made a judgment of value—the value to it of what the foreign national is providing. The campaign has only so much time and resources, and if it chooses to encourage an activity, it has made a judgment about the benefit. For the foreign national who receives the help, the assistance in perfecting a message for an American audience is invaluable–in other words, “substantial.”
The Element of “Knowingness”
The regulations condition substantial assistance and solicitation liability on “knowingly” engaging in these campaign activities with a foreign national. Actual knowledge that the source is a foreign national satisfies the condition, of course. So does awareness of facts that would lead a reasonable person to reach the conclusion that there is a “substantial probability” that the source is a foreign national. And, in the event of uncertainty, that reasonable person has a duty to inquire, and the failure to conduct a reasonable inquiry constitutes “knowingness” under the rules.
These rules are written specifically with reference to the knowledge of the “source of funds,” which might prompt a question about the omission of “thing of value.” But the core offenses, substantial assistance and solicitation, do specifically include knowingly assisting in or soliciting the provision of “things of value,” and the knowingness definition clearly applies to them. The drafting may not be precise, but the correct construction is clear.
The Facts and the Law
Reviewing the Key Knowns and Unknowns
All these considerations–the nature of the government interest, repeatedly expressed congressional intent, the breadth of the rules, and the absence of constitutional protections for foreign electoral intervention–are relevant to an assessment the legal implications of the Trump campaign’s involvement with Russia in 2016.
It is best to start by acknowledging what we do not know and the potential significance of this missing information. Did George Papadopoulos advise the campaign that sources close to the Russian government told him about the stolen Clinton emails months before their release? He did not keep the information to himself, since he shared it over drinks with the Australian Ambassador to Great Britain. It seems doubtful that he kept from Trump Tower what he relayed to an Australian.
We also don’t know what Donald Trump Jr. told his father about the delegation from Moscow, which arranged the meeting with senior campaign staff by offering campaign assistance. The Trumps deny the father was told. Mr. Bannon who knows how thing work in Trump World is not alone in being skeptical.
These missing pieces of information, once known, will establish only one of two possibilities. The Russians were periodically knocking on the door of the Trump campaign, but the campaign was not encouraging or engaging with their offers or acts of support. On this version of events, the Trump campaign was simply open to a better relationship with Russia and quite clear about it, both publicly and privately. Or, in the alternative, the Trump campaign and the Russians were engaged in an understanding that is pieced together and then implemented over a series of months. The Trump campaign would receive support in the campaign and work in tandem with the Kremlin to achieve their political goals, and the Russians would cement a useful relationship with the next president of the United States.
The evidence to date, on the public record, is stronger for the first than the second of these theories. When Russians known to have a close connection to Moscow advised Papadopoulos that his government had “thousands” of Clinton emails, this foreign policy adviser to the presidential nominee did not disclaim interest. He did not alert U.S. authorities. This becomes especially significant if it turns out that Papadopoulos alerted the campaign to this information and was authorized to maintain or develop his contacts–“the Professor” (identified as a Russian agent in Papadopoulos’s plea statement) and the Russian “connection” from the Ministry of Foreign Affairs. This would have been a sure sign to the Russians that the campaign welcomed their assistance.
In any event, Papadopolous kept the campaign closely informed about his contacts and was encouraged to pursue them. The person identified in the DOJ Statement of Offense as his “Campaign Supervisor” notably praised Papadopolous for his “great work” in building the relationship between the campaign and individuals connected to the Russian government. Papadopolous was clearly acting in these activities on behalf of the Trump presidential campaign, as its agent.
This was not, of course, the only time that the Russians were encouraged to believe that the Trump campaign was glad, indeed eager, to have the help. In June of 2016, the campaign invited Russians connected to the Kremlin to travel to the United States to discuss information in their possession supposedly damaging to Hillary Clinton. Don Jr. expressed enthusiasm for the offer of assistance and conveyed his view of how the publication of the material could be timed to best serve the campaign’s interests. “[I]f it’s what you say I love it especially later in the summer.”
Trump Jr. and the senior campaign staff acted with clear knowledge that the individuals engaging with their campaign were closely associated with the Russian government and acting with its authorization. The intermediaries who proposed and arranged the meeting told him so. The emails from Mr. Goldstone stressed in the first line (1) that the government, through the offices of the Crown Prosecutor, was the source of assistance, and (2) that the Moscow traveling party was tendering campaign assistance as “part of Russia and its government’s support of Mr. Trump.”
This was months after Papadopoulos first heard about the emails–the second time that the Russians had, with evident interest in the part of the Trump campaign, offered assistance. The Russians would also have been aware that, four days after their offer of this meeting, Trump announced plans for a press conference at which new disclosures about Secretary Clinton would be made. The president seems to have believed that something sensational for use against Clinton might soon be in hand. The timing suggests that he was alerted to the offer from the Russian government and open to it. Again, the Russians would have taken note.
It is not clear what happened at the meeting, but we do know that the president participated in publicly misrepresenting the nature of the meeting and the identities of those in attendance. Bannon has expressed disbelief that anyone would think that the president was not informed in real time about what the Russians came to offer. He suggests that Don Jr. might have brought the Russian visitors to meet with his father.
The campaign dismisses the encounter and argues that the Russians came with material that the campaign senior staff did not think useful. Perhaps so; but on this question, too, we know a good deal less than the special counsel, and a final public accounting of what transpired at the meeting is still to come. But it is well established that the meeting took place, and its significance lies in part in that fact alone. The Russians knew that an American presidential campaign was willing to accept direct support from a foreign government. They would have learned from the meeting that the Trump campaign was, in fact, eager for the information about Clinton cited without specifics in the Goldstone emails. Don Jr. has acknowledged that he “pressed” the Russian lawyer for more information during the meeting.
Later in the year, Don Jr. communicated privately with Wikileaks, the known agent of the Russian government in the distribution of illegally hacked material. Once again, he confirmed the importance the campaign attached to these disclosures. He accepted from WikiLeaks a link for general distribution that would facilitate press access to the emails of supposedly highest interest. Fifteen minutes later, picking up on the theme that no one should overlook the importance of this email cache, his father tweeted out a complaint that the press was failing to report more thoroughly about this material. Another two days later, Don Jr. tweeted out the link provided by WikiLeaks. Did Trump Sr. learn about the WikiLeaks communications from his son and act on the specific request that he help in promoting the emails? And, of course, by October, the president was appealing openly to the Russians to locate and disseminate deleted Clinton emails.
These known facts support a case that the Trump campaign knowingly solicited the Russian government’s support and gave the Kremlin “substantial assistance” in achieving its electoral aims.
(1)The solicitation theory draws strength from the communications between the Trump campaign and the Russian government intermediaries, and from the surrounding circumstances. The Russian government probed for the campaign’s expression of interest in the emails; the Trump campaign left little doubt that it was interested. In fact, the exchanges between the Trump campaign and the emissaries from Moscow constitute an explicit statement of that interest in the “thing of value” the Russians claimed to have. To the extent that the campaign might answer that it never quite “asked for” anything in particular, merely agreeing to receive the traveling party and listen, the problem is that the law reaches “implicit” solicitations, not just specific requests. The rule also covers words-plus-conduct, and the behavior of the campaign–an extraordinary meeting with agents of a foreign government in campaign headquarters with the senior staff–bolsters a solicitation charge.
Moreover, the “thing of value” the Russians were peddling remained the same over the course of the year. The purloined emails were not a one-time gift to the campaign. First came the DNC material, then the Podesta stolen emails, and WikiLeaks spread them out over time, in a series of disclosures. The entire course of dealing between the campaign, the Russians and WikiLeaks reflects on the campaign’s part an ongoing strategic commitment to these revelations, and its active assistance to the Russians in using them to maximum effect. The solicitation itself did not take place on just one occasion but was confirmed over time.
(2) “Substantial assistance” is not hard to plead on these facts, coupled with those that may yet come in response to the clear and pending questions. The campaign knowingly encouraged the Russians and Wikileaks at every turn. It was helpful enough that the nominee, rather than denouncing this intervention, publicly applauded it. His tweets and those of his son were also beneficial to the Russian cause.
It also seems to have escaped notice that the campaign aided the Russians by providing access to its judgments about attacks that would be ineffective. The campaign suggests that the Russians came to the U.S. with information about questionable donations implicating Clinton, and they waved this off as of no use or interest. That, too, was valuable to the Russians, who could then turn to other, more fruitful lines of attack. The point is that the Russians and the campaign were working together, sharing information toward the achievement of a shared goal, and the alliance they forged was unquestionably advantageous to the Kremlin.
Trump Campaign Liability
A criminal prosecution will have to address questions of intent., and the president and his campaign team may defend by arguing a lack of clarity about motive in these unusual circumstances. They might stress that the campaign never accepted any cash. It played no part in the hacking of the DNC or of Podesta’s personal email account. Its intention was just to reinvigorate a relationship badly damaged in the Obama years. As all the rest is just politics, maybe some bad judgment exercised here or there, but in no way an appropriate basis for what would be, certainly, an unprecedented criminal charge.
This defense has to fail at least in the case of the Trump campaign as an entity. Let’s assume, for example, that Don Jr., inexperienced and naïve in the way of politics, did not understand legal problems arising from his contacts with agents of the Russian government in Moscow and WikiLeaks. He might also argue in his own defense the more experienced members of the campaign staff who might have warned him about these problems said nothing. What’s more, they accepted his invitation that they meet with Russian agents at the Trump Tower in June 2016.
If Don Jr. did affirmatively advise his father about the meeting, the WikiLeaks proposal for promoting the email cache, and the like, he might have even more of a reason to argue that if the nominee, his father, saw nothing wrong with the activity, the son would not have known the legal risks that he was running.
But the campaign is an organization, an entity with independent legal obligations, and does not have any such defense or excuse. The rules apply to it, as they do to any “person.” It was a large organization, and it had available legal advice required to comply with the law. No lawyer consulted about the facts known to date would have rendered an opinion that these contacts were lawful. Either the senior staff received advice that it disregarded, or chose not to ask for advice. The campaign’s vulnerability to criminal prosecution often escapes consideration in any discussions about the likelihood of criminal liability for these campaign finance violations.
And Donald Trump? The other day the president reflected on his flexibility in the choice of friends and adversaries and in patching up quarrels. He does not see himself as having any “permanent” enemies or adversaries. “I’m a very flexible person.” For this dealmaker, what drives him is his self-interest, and at any particular time, the benefits of cutting a deal. That his potential deal partner was the Russian government, and that the bargain would involve Kremlin support for his election, may not have struck the president as materially different from other agreements struck in his and a negotiating counterpart’s mutual interest. As the president stated in July of 2017 at a news conference, “I think from a practical standpoint most people would have taken that [Trump Tower] meeting” with the Russians.
In the end, the public record suggests that the candidate, aided by a number of the senior advisers, thought he could make a deal with the Russians. For all we know, Mr. Trump may be truly offended by prior administrations’ policies toward Russia and he believes that improved relations with Vladimir Putin serve the national interest. In 2015 and 2016, he also saw the potential for his campaign in this rapprochement. He entered into a political alliance with a foreign government and there is not much in his business career to suggest that he would sacrifice the gains he perceived in this relationship to the admonitions of his lawyers.
The Russia Matter and the Campaign Finance Laws
Evaluation of the campaign finance issues in the Russian investigation has suffered somewhat from the perception that the law is weak and out of date and its enforcement is in decline. There are other forces at work in the political culture that are contributing to these judgments. Polarization has produced a no-holds-barred competition in which the contending sides want to spend as much as they wish, however they wish. Nothing appeals to them less than limits on the availability or use of resources. Political and issue advocacy organizing are burdened by the costs of complying with complex and voluminous regulations. Increasingly, political actors also worry in a hyper-polarized environment about the potential for harassment that comes with the mandatory disclosure of political spending.
But the law implicated and set of issues raised by the Russian intervention in the last election are of an entirely different nature. It would be a legal development of some moment for a presidential campaign to conduct itself as this one did in 2016 in an alliance with the Russians, and for no legal consequences, even for the campaign as an entity, to follow. It is far from clear that a grand or trial jury would disagree.