A federal grand jury has indicted Roger Stone for obstructing the federal investigation into Russian interference in the 2016 presidential election, making false statements to the federal government, and witness tampering. The details of Stone’s allegedly illegal activities laid out in the indictment implicate the Trump campaign, and perhaps President Trump himself, in illegally soliciting a campaign contribution from a foreign national—namely, hacked emails damaging to Hillary Clinton, in the possession of WikiLeaks founder Julian Assange and originating with Russian military intelligence hackers.
Background on the Law
Federal campaign finance law prohibits foreign nationals from directly or indirectly making a “contribution or donation of money or other thing of value” in connection with a U.S. election—and also prohibits any person from soliciting, accepting or receiving such a contribution.
Federal law defines “contribution” to include “any gift … of money or anything of value made by any person for the purpose of influencing any election for Federal office.” And federal regulation defines “solicit” to mean “to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”
Whether violations of federal campaign finance are criminal violations, or merely civil violations, depends on whether the violator 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.”
And the federal criminal code prohibits “caus[ing] an act to be done which if directly performed by him or another would be” a federal crime, as well as aiding, abetting or commanding commission of a crime.
Relevant Facts as Stated in Stone Indictment and Reported Elsewhere
The Stone indictment alleges that “[a]fter the July 22, 2016 release of stolen DNC emails by Organization 1 [i.e., WikiLeaks], a senior Trump Campaign official was directed to contact Stone about any additional releases and what other damaging information [WikiLeaks] had regarding the Clinton Campaign.”
Stone immediately acted on the Trump campaign’s request for additional damaging information on Clinton, corresponding “with associates about contacting [WikiLeaks] in order to obtain additional emails damaging to the Clinton Campaign.” On or about July 25, 2016, Stone sent an email to one of his associates Jerome Corsi, i.e., Person 1, with the subject line, “Get to [Assange]” and a message body read, “Get to [Assange] [a]t Ecuadorian Embassy in London and get the pending [WikiLeaks] emails . . . they deal with Foundation, allegedly.” Corsi then reportedly forwarded Stone’s email to “an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.”
The draft statement of offense for Corsi states that Corsi “understood [Stone] to be in regular contact with senior members of the Trump Campaign, including with then-candidate Donald J. Trump” when Stone “asked Corsi to get in touch with [WikiLeaks] about materials it possessed relevant to the presidential campaign.”
On or about August 2, 2016, Corsi emailed Stone with details of Assange’s plans for two more “dumps” of hacked DNC emails, one in August and one planned for October. Corsi told Stone it “[w]ould not hurt to start suggesting HRC old, memory bad, has stroke –neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”
On or about September 18, 2016, Stone sent a text message to Randy Credico, i.e., Person 2, that said, “I am e-mailing u a request to pass on to [Assange].” Soon thereafter Stone emailed Credico “an article with allegations against then-candidate Clinton related to her service as Secretary of State” and the message: “Please ask [Assange] for any State or HRC e-mail from August 10 to August 30—particularly on August 20, 2011 that mention [allegations against Clinton related to her service as Secretary of State] or confirm this narrative.” Credico initially responded to Stone that such emails would be on WikiLeaks’ website, according to emails obtained by the Wall Street Journal, and Stone replied: “Why do we assume WikiLeaks has released everything they have ???”
When a senior Trump campaign official contacted Stone in late July 2016, asking Stone to obtain information from Assange about emails stolen from the DNC that were damaging to Clinton and not yet publicly released, Trump and his campaign team, along with the general public, knew that Russian intelligence officers had done the hacking to steal the DNC emails—because this fact had been reported by the Washington Post on June 14, 2016, and several news stories in June and July continued to report on the Russian operation.
Stone also admitted to the Washington Times that in August 2016 he was communicating directly with “Guccifer 2.0” via Twitter messages about the stolen DNC emails. “Guccifer 2.0” was the fictitious online persona of Russian military intelligence officers who hacked the DNC and were indicted in July 2018 for conspiracy, identity theft and money laundering. That same indictment included Stone’s communications with Guccifer 2.0. noting that, at the time, Stone was “in regular contact with senior members of the presidential campaign of Donald J. Trump.”
Applying the Law to the Alleged and Otherwise Reported Facts
If one or more Trump campaign officials, or Donald Trump himself, solicited a “contribution” (i.e., something of value to influence the 2016 presidential election) from a foreign national, or caused or commanded someone else (e.g., Roger Stone) to solicit such a contribution, then they violated federal law.
The Stone indictment states that “a senior Trump Campaign official was directed to contact Stone about any additional releases and what other damaging information [WikiLeaks] had regarding the Clinton Campaign.” Who would likely have been “directing” a senior campaign official? The candidate himself—Donald Trump—seems like an obvious possibility.
Information that is damaging to an opponent is known among political professionals as “opposition research.” Opposition research is of immense value to candidates—they regularly pay opposition research firms (like this one or this one) big money to produce opposition research. The Trump campaign asked Roger Stone to obtain opposition research on Hillary Clinton from foreign national WikiLeaks founder Julian Assange, which the campaign knew originated with Russian military intelligence officers.
If the facts alleged in the Stone indictment are true, it certainly appears Donald Trump or another high official in his campaign illegally solicited a campaign contribution from a foreign national—in the form of requests that Stone obtain opposition research on Clinton for the Trump campaign. And Stone himself seems to have illegally solicited this foreign national contribution to the Trump campaign, though he was not indicted for this campaign finance crime.
Alternatively, this same individual may have violated the criminal law prohibition on causing or commanding Roger Stone to commit an act which if directly performed by Trump of a campaign official would be a federal crime.
This is true even if the Trump campaign never received any hacked emails or other opposition research on Clinton privately and, instead, only saw the hacked emails when WikiLeaks released them to the public. Soliciting a contribution from a foreign national is illegal, even if no contribution is received in response to the solicitation.
Professor Rick Hasen has suggested that these activities may not constitute violations of campaign finance law because WikiLeaks might count as a “news organization” exempt in certain ways from campaign finance laws. But the so-called “press exemption” from federal campaign finance laws applies only when new organizations are engaged in legitimate press functions—gathering and disseminating news.
The July 2018 indictment of Russian intelligence officers related to hacking the DNC makes clear that WikiLeaks’ purpose in releasing the Russian-hacked DNC emails was to heighten the impact of Russia’s influence operation. For example, in June 2016 WikiLeaks instructed the Russian intelligence officers to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” WikiLeaks was seemingly operating in these matters as part of the Russian influence operation, not as a news organization exempt from campaign finance laws. There are limits to the campaign finance law “press exemption” and, just as American Media Inc. exceeded those limits when it made a “hush” payment to Karen McDougal on behalf of Donald Trump, so too may WikiLeaks have exceeded those limits in this matter.
The Stone indictment implicates the Trump campaign, and perhaps President Trump himself, in violations of campaign finance laws. Campaign finance law violations by the Trump campaign are starting to pile up, with another illegal solicitation of a foreign national contribution possibly occurring in the June 2016 Trump Tower meeting between senior campaign officials and a Kremlin-connected Russian lawyer, and Trump involvement in illegal “hush” payments to Stormy Daniels and Karen McDougal.
[Editor’s note: On the topic of WikiLeaks and the First Amendment, readers may also be interested in the following:
Floyd Abrams, What Facts Would Deny the Trump Campaign First Amendment Protections in Colluding with Russia
Yochai Benkler, Prosecuting Wikileaks, Protecting Press Freedoms: Drawing the Line at Knowing Collaboration with a Foreign Intelligence Agency
Bob Bauer and Ryan Goodman, Why the First Amendment Does Not Protect Trump Campaign Collusion with Wikileaks and Russia
Dan Froomkin, Reply to Bauer and Goodman: No, the Government Doesn’t Decide What ‘Legitimate Press Functions’ Are First Amendment Worthy
Andy Wright, The DNC Lawsuit and First Amendment Sensitivities;
Elizabeth Goitein, The Constitutional Rubicon of an Assange Prosecution;
Ryan Goodman and Steve Vladeck, Q&A: Why an Assange Prosecution Could Pose Such a Threat to the Press]