Congress, Don’t Get Distracted: New Laws Aren’t Needed to Make It a Crime to Accept Foreign Election Help

President Donald Trump’s comments last week that he would welcome foreign assistance to his campaign, and not be prompted by such an offer to call the FBI, raised a firestorm of outraged commentary. True to form, Trump then retreated from those comments and was unclear whether he would alert the FBI. But Trump has once again succeeded in diverting the public from what really should matter when it comes to foreign election interference.

As documented by Special Counsel Robert Mueller, Trump and his 2016 campaign welcomed assistance from the Russian government and hid that from the FBI. Then, Trump repeatedly lied about that assistance, even after being elected president and taking the oath of office. He not only lied, he has defended Russia’s actions and tried to obstruct the investigation into its theft of Americans’ emails and its attack on our democratic system. There can be no doubt that he would do so again, if he thinks he can get away with it. Unfortunately, given the response to his comments last week by both parties in Congress, he has little reason to be worried.

Much of the response has been focused on whether candidates should report foreign overtures to the FBI, including efforts to pass a law making it a crime for a campaign not to report. The Democrats in the House are reportedly contemplating a package of laws, including a requirement to report to the FBI. (Writing for Just Security, Jen Daskal called on Congress to enact such a requirement.) Even before Trump’s comments, members of the House Intelligence Committee asked a former FBI counterintelligence agent, testifying before the committee, about imposing such a requirement – though the witness was wary of the proposal. After Trump’s comments, Sen. Mark Warner (D-Va.) sought to pass a bill that would require reporting to the FBI, which Senate Republicans predictably, and despite their condemnations of Trump’s comments, defeated.

Bills imposing a duty to report are likely to be politically popular. Almost no politicians, other than Trump, argue that it is acceptable for campaigns to accept foreign assistance. Indeed, as the Federal Election Commission (FEC) chairwoman felt bound to point out: It is already a crime for a political campaign to accept foreign assistance.

Nevertheless, there may be a need at some point in the future to examine existing campaign finance laws, especially given that Mueller determined not to indict members of the Trump campaign, including Donald Trump, Jr. for their explicit willingness to accept Russia’s offer of assistance, because he thought that ambiguities in the statute would make the prosecution too difficult. (Others think he read the law too narrowly.)

But focusing on amending such laws right now, and especially on enacting a new law requiring reporting to the FBI, is a distraction from what can and needs to be done to prevent Trump from welcoming foreign interference again in 2020. Proposing changes to the law is not going to stop a repeat of Russia’s attack in the next election. (And making it a crime for Americans not to report communications from foreigners could raise serious First Amendment issues if not narrowly tailored to protect lawful communications.)

Rather, debating now whether new laws are necessary could play into the misleading narrative of Trump and his supporters, that Mueller exonerated him of misconduct in his dealings with the Russians during the 2016 campaign. Proposing new laws in response to Trump’s claim that he can do it again could muddy public understanding that seeking or accepting foreign assistance is already criminal – as spelled out in the FEC chairwoman’s statement.

At best, this effort distracts from public focus on what Trump and his campaign actually did with respect to Russian assistance during the 2016 campaign. While Trump has now publicly announced that he doesn’t see anything wrong with accepting help from a foreign adversary, at the time it happened, both Trump and the Russians tried to keep their interactions a secret. And even after being elected president, Trump continued to lie to the American people, including lying about the Russians meeting with his campaign, denying Russia’s role in the attack; and repeatedly trying to prevent a full investigation into that attack.

As Rep. Adam Schiff (D-Calif.) has pointed out, Trump’s comments are likely already understood by foreign governments as an invitation to interfere in the next election. “What foreign powers will conclude from this is that if they want to help the Trump campaign, the Trump campaign is open for business, just as they were in 2016,” Schiff said. “The president has only increased the risk of further foreign interference in the next election.”

The best way to prevent this is for Trump to be held accountable for his acceptance and encouragement of Russian crimes, followed by his lies and defense of Russia when he became president. The Constitution is clear that it is Congress’ responsibility to hold the President accountable and to impose consequences for his actions.

Congress needs to focus on the issue of how to impose that accountability and what those consequences should be, questions that congressional leadership have yet to figure out. Passing bills requiring reporting to the FBI (which are extremely unlikely to become law given the make-up of the Senate and the president’s veto power) could squander valuable and limited congressional, media, and public resources and attention. And even if Congress were able to enact such laws, Trump would still be immune from prosecution for violating the laws for as long as he is president.

Congress needs to act, but in the most effective way. It must not get distracted from its obligation to lay out the president’s conduct for the American public and hold him responsible. Just as with Watergate, there will be time enough after Trump is held accountable to consider whether laws of broad application also need to be changed to prevent this from happening again.

Photo by Timothy A. CLARY/AFP/Getty Images

 

About the Author(s)

Kate Martin

Senior Fellow at the Center for American Progress