The Failures of the Mueller Report’s Campaign Finance Analysis

Special Counsel Robert Mueller’s report contains several surprises, most famously in declining to determine whether the President committed obstruction of justice. The Special Counsel does, however, engage in an extensive discussion of the facts and the law on that and other issues within his remit. On the constitutional law issues, he confronts and methodically refutes the claim advanced by the President’s legal team that, in the exercise of Article II authority, corrupt motive is irrelevant.

So it is also a surprise that this approach—a careful assessment of the legal case—is not one Mueller also follows in addressing the campaign finance issues raised by Donald Trump and his campaign’s solicitation and acceptance of assistance from the Russian government. The Report treats the campaign finance issues almost cursorily—one could say, superficially— even to the point of failing to identify and address all the applicable law. The results are an unconvincing decision to decline any prosecutions, and a major question about the enforcement of this law in 2020 and beyond.

Elision of the Basic Rule: The Foreign Source Ban

The Mueller Report’s legal analysis is incomplete in two critical respects.

First, it omits entirely the systematic congressional commitment to prohibiting foreign national spending of any kind in federal elections and American support for such illegal campaign finance activity. The legislative record includes a major amendment to tighten up the prohibition as recently as 2002. This revision of the law closed perceived loopholes and ratcheted up the criminal penalties for violations. The legislative reform arose out of extensive congressional inquiries into alleged foreign national campaign finance activity in the 1996 presidential election. The prohibition is sweeping, and, as evidence of congressional concern, it applies to elections at all levels of government – federal, state, or local.

In this context, one might expect from the Report a more searching examination of the foreign campaign spending issues in a case  involving a presidential campaign and its unprecedented solicitation and receipt of support from a hostile foreign government. Yet the Report omits the background and reflects none of this focus. It’s analysis in this instance is more typical of the treatment of a run-of-the mill campaign finance legal question. The context is also relevant to the analysis later of what “general knowledge” Trump Campaign officials might be imputed to have had about the legal consequences of their decision to meet with a Russian delegation promising to bring “very high level and sensitive information” damaging to Hillary Clinton. The foreign national spending ban is not an obscure provisions of the federal campaign finance laws. Nor, as the campaign finance laws go, is it especially abstruse or complex.

Omission of the Wide-Angle: The “Substantial Assistance” Prohibition

Second, the Report considers a range of authorities in describing the campaign finance laws, including the Federal Election Commission’s regulations and advisory opinions. However, this section of the analysis remarkably does not include a regulation that squarely prohibits campaigns from “substantially assisting” foreign nationals in any effort to expend funds to influence American elections. 11 C.F.R. 110.20(h).

It’s not clear from the Report why it omits this rule, but the omission has the effect of significantly narrowing the analysis of the potential legal violation. It puts the entire weight of its decision on one specific offer of assistance from a foreign national, accepted by the campaign, resulting in the Trump Tower meeting between the senior campaign staff and a delegation from Russia. As a result, Mueller’s analysis fails to situate the Trump Tower meeting within the broader context of the Trump Campaign’s months-long bid for assistance from a Russian government eager to help the campaign win and actively working to do so.

The Russians made clear that the Putin regime supported the Trump candidacy: The Campaign’s offer of an open door for a discussion of their mutual political objectives could have only encouraged the Russians in both the Trump Tower meeting and on other occasions to pursue their extraordinary intervention in the 2016 election. In effect the Trump Campaign “greenlighted” the Russian operation. The Kremlin may well have pursued the same course, but in this instance, it had the substantial benefit of knowing that the Trump Campaign welcomed the help.  The Campaign validated for the Russians the utility of the Kremlin’s many contributions to the candidate’s electoral efforts.

So it was soon after the June 9 meeting that a Russian military front organization began releasing the DNC emails. Then after the U.S. intelligence agencies made an unprecedented public announcement on Oct. 7 tying WikiLeaks’ disclosures to “Russian-directed efforts,” candidate Trump began promoting WikiLeaks on the trail, “WikiLeaks, I love WikiLeaks,” and using his massive Twitter platform to do the same.  Donald Trump Jr. appears to have tweeted a specific link to WikiLeaks’ documents upon the organization’s secret request. These repeated interactions and communications are what reasonably, on the law, could be construed to be the Trump Campaign’s “substantial assistance” to the Russians’ 2016 electoral intervention.

Foreign National Opposition Research

Even in its highly circumscribed examination of the legal consequences of the Trump Tower meeting, the Mueller Report is bewilderingly self-limiting. The question it poses is whether, in the arrangement and then the conduct of the Trump Tower meeting, the Campaign illegally solicited and then received foreign national assistance. The Mueller Report concludes (1) that the assistance is difficult to value and (2) that the “senior representatives of the Trump Campaign” in the June 9 Trump Tower meeting might not have understood that they were running afoul of the law.

To reach these conclusions, the Report strains hard to give the law a highly constricted reading and the Campaign a magnanimous share of the benefit of the doubt on the facts.

Opposition Research and the Valuation Issue

Mueller concedes that the term “anything of value” under the law extends to information, and even states that that this kind of “[opposition] research … could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.” But the Report then abruptly breaks from the established law to note that “no judicial decision” has confirmed the treatment under the campaign finance law of “uncompensated research.”

This is an odd turn: If for years the statute and regulations have been clear on the law, the absence of a “judicial decision” is beside the point. It is also worth considering that the campaign finance laws have been subject to a slew of legal challenges over the years. Of all the material fit for litigation, the regulatory stance on the breadth of the term “anything of value” and its application to research material has yet to prompt a resort to the courts for relief.  The most plausible explanation for this acquiescence on the part of the regulated community is that few have imagined that a complaint would be successful.

After all, as Mueller concedes, opposition research can potentially ”exert a greater effect on an election” and “a greater tendency to ingratiate the donor to the candidate” than cash or tangible items. What’s more, because the law on this point is well-established,, the Report accepts that the phrase “thing of value” should be construed “broadly” and includes “forms of valuable information” such as “law enforcement reports that would reveal the identity of informants” and “information about a witness’s whereabouts.” The type of value provided to a campaign through opposition research cannot, then, be read out of the campaign finance laws.

The report nonetheless purports to identify a problem in bringing a prosecution based on the solicitation of this research from a foreign government, contending that it would have “implications beyond the foreign source ban”  and would “raise First Amendment questions.”

The first of the stated concerns is inscrutable. The Report does not specify the implications, alluding only to the statutory scheme of limits on contributions. Perhaps the report is suggesting that a broad reading of “anything of value” could present enforcement issues for solely domestic U.S. political actors’ soliciting and receiving opposition research. But the law does, in fact, apply to information of this kind, as the legal authorities that Mueller cites clearly show.

The second stated concern – a reference to “First Amendment questions” — is presented without further explanation. But this is not a case of a U.S. donor but one involving a foreign government’s offer and provision of campaign support. And it is a case requiring application of the foreign national spending prohibition, which stands on a strong and recently affirmed constitutional foundation and can be distinguished from any hard legal calls that in some case might be required if only U.S. nationals were involved. Whatever issues in some other context may arise, it is hard to see their relevance in a case in which it is a foreign government trafficking in political dirt to influence a presidential campaign (indeed, as part of an espionage operation).

In any event, a full critical response to this portion of the Report its difficult where the discussion is so brief and lacking in clarity and even an argument.

The Mueller analysis ends with this further puzzling observation: “The question [of valuation] could be especially difficult where the information consisted simply of the recounting of historically accurate facts.” What could this possibly mean—that opposition research, if it is good and factually accurate research, is harder to value, and so its donation escapes the ban on foreign national financial activity in support of an American presidential campaign? Such an interpretation could well have implications beyond the foreign-source ban—troubling implications. Can companies provide campaign opposition research free of charge or below market value so long as what is supplied are “historically accurate facts”?  On this basis may wealthy individuals hire teams of researchers and provide their reports to politicians without counting it as a contribution of something “of value”?

Finally, Mueller undertakes to show that, whatever the value of the information offered, it may not have exceeded the thresholds for criminal prosecution under the campaign finance laws – generally, $2000, or $25,000 for a felony conviction. Mueller says that evidence for valuing this opposition research would “likely be unavailable or ineffective in this factual setting,” but he’s making an assumption and no more. What’s more, the foreign national spending to support this offer, which the campaign was well aware it was accepting, exceeded $2000 just in air travel and hotel expenses incurred by the Russian delegation. The campaign finance violation does not consist entirely of spending for the development of the “dirt” itself. The costs of transmission also count toward the statutory threshold of prosecution.

If anything, the factual setting in this case, including the Campaign’s dogged search for Clinton’s emails upon Trump’s repeated requests, shows how much they valued such “very high level and sensitive information” from the Kremlin. As Mueller acknowledges, the law appropriately takes into account in any valuation the significance of the information to the donee. The Trump Campaign could hardly have valued it more.

 The “Knowing and Willful” Issue

 The Mueller Report then moves to the question of whether the prosecution would founder on the failure to show that the participants in the Trump Tower meeting “knowingly and willfully” broke the law in soliciting support from the Russian government. Mueller sees no evidence that, at the time of the meeting, the American participants were trying to hide their actions. Later, he concedes, they lied to prevent its public disclosure, but this may have reflected “an intention to avoid political consequences rather than any prior knowledge of illegality.”

Of course, the “political judgment” that Mueller imagines may have included a belief that disclosures would lead to legal as well as political trouble. Indeed even the political judgment could have had a legal dimension: that adverse public reaction could be influenced by the charge that the meeting with the Russians violated the law. Mueller inexplicably divorces the “political” from the “legal” motives at work in the substantive falsehoods later told about the meeting.

It is also unnecessary to speculate about the motive to escape legal exposure—from actions they took and statements they made around the time of the meeting, not just when the team drafted a cover story on Air Force One a year later. According to the Report, in the meeting preceding the June 9 encounter with the Russians, “Manafort warned the group … they should be careful,” and that what he had in mind at least included legal concerns seems borne out by Don, Jr. testimony to Congress that he knew to seek legal counsel if the Russians did offer something valuable at the meeting. Moreover, Chris Christie wrote that the Campaign deliberately left its General Counsel Don McGahn out of the loop on the Trump Tower meeting because the lawyer “would never have allowed the meeting to occur.”

The Report then goes out of its way to minimize what the participants may have understood about the law. In Manafort’s case, Mueller acknowledges that he is “experienced with political campaigns,” but the Special Counsel’s “Office has not  developed evidence showing that he had relevant knowledge of these legal issues.” Again, the foreign spending ban is decades old, and this was Manafort’s fifth major presidential campaign. He could not have been unaware of the 1997 congressional hearings that dominated the headlines in inquiring into alleged foreign national support for the Clinton reelection campaign. Indeed, Manafort had worked as a senior advisor for Clinton’s opponent, Bob Dole, during that presidential campaign. On Mueller’s assessment of what constitutes “relevant knowledge” of the campaign finance laws on the part of seasoned political operatives, many in that class may now have reason to believe they’ve just been issued a “get out of jail free” card for any number of illegal activities.

And Donald Trump Jr., who put the meeting together? He gets off the hook because the Russians did not offer a detailed preview of what “dirt” they had on Hillary Clinton, only references to damaging material, and he may have been uncertain that he was going to receive useful material. Mueller quotes the email in which Don, Jr. wrote to his intermediary in the negotiations with the Russians “If it’s what you say, I love it.” Mueller emphasizes the first clause as evidence of uncertainty.

It is strange for Mueller to assign much weight to this language.  Don, Jr. was sufficiently confident that the Russians would deliver valuable information that he welcomed them to the United States and assembled the senior campaign staff to hear them out. If someone calls me to ask if I would be interested in meeting them at a specific time and place to accept an envelope with a $1000 in it, I might reply—“if you are offering me $1,000, I will be there”—and no one could reasonably read into this reply skepticism about the offer. When I showed up, my actions would end all doubt.

And what about Jared Kushner, the President’s son-in-law? Mueller decides that his state of mind has to be evaluated in light of his “less direct involvement in arranging the June 9 meeting.” True, someone at the Trump campaign had to take the lead in arranging the meeting, and it was Don, Jr., not Kushner. But Kushner understood the purpose of the meeting and the identity of the guests, and he attended. His “less direct” role in the logistics of the meeting has no bearing on whether he knew the meeting violated the campaign finance law.

The Basis for the Special Counsel’s Declination of Campaign Finance Charges

For reasons that are not clear, but perhaps reflecting some of the traditional uneasiness of prosecutors in charging violations of the federal campaign finance laws, the Mueller team passed on the option to bring an indictment for a foreign national spending violation in connection with the Russia-Trump campaign political alliance of 2016. Even if reluctant to charge individuals who arranged and attended the Trump Tower meeting, the prosecutors could have charged the Trump Campaign as an entity. Yet they also declined to pursue that route to legal enforcement.

Certainly the President’s lawyers were giddy, with Rudy Giuliani quickly spreading his message that there was nothing fundamentally wrong with soliciting or accepting information from a foreign government seeking to influence an American political campaign. Trump’s Attorney General appears willing to say only that if a foreign intelligence service, as opposed to a foreign government, offers dirt on an opponent, a campaign should contact the FBI. What Donald Trump and his legal team will now feel free to do in 2020 remains to be seen.

  

About the Author(s)

Bob Bauer

Former White House Counsel to President Obama (2010-2011). Professor of Practice and Distinguished Scholar in Residence at New York University School of Law.