According to a court filing earlier this week, former 2016 Trump campaign chairman Paul Manafort shared presidential campaign polling data with Konstantin Kilimnik, a Russian citizen with ties to Russian intelligence. If the data Manafort shared with Kilimnik was used to materially guide spending by Russian nationals to influence the 2016 presidential election, then the Trump campaign seemingly received an “in-kind contribution” from the Russian nationals in the form of “coordinated expenditures” in violation of multiple federal campaign finance laws. A key link in the “coordination” here is the revelation of Manafort’s actions.

How the Law Works

U.S. campaign finance law for decades has provided that any expenditure “made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents” is considered a contribution to such candidate subject to contribution limits.

Federal law further provides that a political communication, including any Internet communications placed for a fee on another person’s website, is “coordinated” with a candidate campaign committee when:

  • The communication is paid for, in whole or in part, by a person other than that candidate committee;
  • The communication contains specified content, including reference to a clearly identified presidential candidate during the period beginning 120 days before the candidate’s primary up to and including the day of the general election; and
  • The candidate’s campaign committee requested or suggested the communication be created, produced or distributed; or (let me emphasize: or, not and)
  • The candidate’s campaign committee was materially involved in decisions regarding the content of the communication, the intended audience of the communication or the timing of the communication.

U.S. law prohibits foreign nationals from directly or indirectly making contributions to U.S. candidate campaigns, and likewise prohibits candidate campaigns (and any person, for that matter) from soliciting or receiving such contributions from a foreign national. And federal law defines “solicit” to mean “explicitly or implicitly” asking, suggesting or recommending that another person make a contribution.

Finally, U.S. law requires a federal candidate campaign committee to report to the Federal Election Commission the identification of each person that makes a contribution to the committee with an aggregate value in excess of $200 within an election cycle. If a communication is paid for by another person in coordination with a candidate campaign, the campaign committee must report the value of the communication as an in-kind contribution received by the candidate.

Applying the Law to the Reported Facts

Early in 2017, the U.S. intelligence community concluded that the Russian government had conducted an influence campaign in the U.S. 2016 presidential election, including through “overt propaganda.”

In February 2018, special counsel Robert Mueller secured a federal grand jury indictment of the Internet Research Agency, a Russian “troll farm” with close ties to Russian President Vladimir Putin and the Kremlin, together with two other companies and 13 Russian nationals for multiple conspiracy and fraud charges.

The Internet Research Agency and other defendants are alleged to have operated with a $1.25 million per month budget leading up to the 2016 election, to conduct “information warfare against the United States of America,” including “operations on social media platforms such as YouTube, Facebook, Instagram, and Twitter.” According to the indictment, from at least April 2016 through November 2016, defendants and their co-conspirators “began to produce, purchase, and post advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton.”

This week, lawyers for Paul Manafort accidently revealed through an improperly redacted court document that in 2016 Manafort had shared political polling data with Konstantin Kilimnik, a Russian business associate with active ties to Russian intelligence at the time. (Kilimnik, who has also been indicted by Mueller for obstruction, now lives in Russia.) Reportedly, both “Manafort and Rick Gates, the deputy campaign manager, transferred the data to Mr. Kilimnik in the spring of 2016 as Mr. Trump clinched the Republican presidential nomination. . . . Most of the data was public, but some of it was developed by a private polling firm working for the campaign.”

If Manafort and Gates did in fact share campaign data with Kilimnik, and Kilimnik and/or any other Russians used that data to materially guide Russian political expenditures in support of the 2016 Trump campaign, then the Russian expenditures would be “coordinated” with the Trump campaign under campaign finance law.

More precisely, if Russians used data obtained from Manafort and/or Gates to inform their decisions about paid advertising mentioning Trump or Clinton—decisions about the content of the ads, the timing of the ads, the intended audience of the ads, etc.—then the ads would likely meet the federal law definition of “coordinated communications.”

Funds paid by Russians to distribute or promote such ads on social or traditional media platforms would be “in-kind contributions” to the Trump campaign under federal campaign finance law — meaning the Trump campaign would have violated the federal law ban on receiving foreign national contributions and related disclosure requirements.

In fact, any request, suggestion or recommendation by Manafort or Gates to Kilimnik or other Russians to run ads supporting Trump based on the polling data Manafort and Gates provided would violate federal law, even if the Russians didn’t follow through on the request. Such a request or suggestion by Manafort or Gates would amount to an illegal solicitation of a “coordinated communication” — i.e., in-kind contribution — from a foreign national.

Whether such violations of federal campaign finance law by the Trump campaign would be criminal violations, or merely civil violations, would depend on whether Manafort and any other involved campaign personnel acted knowingly and willfully. As explained in the Department of Justice manual, Federal Prosecution of Election Offenses, campaign finance law violations “become potential crimes when they are committed knowingly and willfully, that is, by an offender who knew what the law forbade and violated it notwithstanding that knowledge.” This was Manafort’s fifth presidential campaign, and he appears to have a disregard for legal rules. It is fair to presume he knew what the law forbade and pursued the clandestine course of action in any case.

Any way you cut it, illegal coordination between the Trump campaign and Russia undermines American democracy. But the accidental revelation this week from the Manafort court document suggests special counsel Mueller is digging deep and following the facts wherever they lead. The American people are entitled to answers and accountability, so the Mueller investigation must be allowed to continue to its conclusion.

Image: Paul Manafort (L), then-campaign manager for presidential candidate Donald Trump, prepares for an interview on the floor of the Republican National Convention on July 17, 2016 in Cleveland, Ohio. (Photo by Win McNamee/Getty Images).