Re-thinking the “Thing of Value” Campaign Finance Charge Against Don Jr.

[I was interviewed on PBS on this topic. Link here.]

I’ve been thinking a lot about my claim in a post on Monday night that Donald Trump, Jr., committed a crime by soliciting a “thing of value” (opposition research) from a foreign national, under 51 U.S.C. 30121. All day Tuesday, I’ve seen more and more commentators, lawyers, and commentators make the same argument. On Tuesday morning, I posted a note of caution about this interpretation for political speech and 1st Amendment concerns. After thinking about it more and reading more, I don’t think such a broad interpretation is correct, and I retract my earlier claims.

First, how do we draw a line between “opposition research” and information or investigation? It’s impossible. So essentially, this interpretation would criminalize a campaign official talking to foreign nationals about anything related to the opponent or even their own candidate.

For example, in 2012, let’s say a newspaper or website published a document purporting to be a Kenyan birth certificate for Barack Obama. Let’s say an Obama campaign official traveled to Kenya to obtain that birth certificate. Would the certificate itself be a “thing of value”? What if that official talked to Kenyan officials about how to prove or disprove the authenticity of that birth certificate? Any conversation would be a “thing of value.” Now let’s say a Romney campaign official did any of these acts (or back in 2008, a Clinton campaign staffer had done the same). It would be “opposition research,” but it would have to be protected speech and not a criminal violation.  [Update: One reader somehow thought I was implying that it would be illegal for Obama staffer but legal for Romney staffer. Just to clarify: I think it would obviously be legal for the Obama staffer to talk to the Kenyan national, even though the information is obviously “a thing of value.” So if it’s legal for an Obama staffer, it has to be legal for a Romney staffer.]

Similarly, let’s say in the summer of 2016, a Russian official contacted the Clinton campaign with information that the Russian government was behind the hacking. Such information would be a “thing of value” to the campaign. Maybe the most appropriate reaction should be to direct the Russian informant to the FBI, but surely it would not be criminal for a Clinton official to meet with the informant to make sure to get the information as soon as possible.

Moreover, I cannot find any case that comes close to applying the campaign finance “thing of value” wording to information or opposition research from a foreign national. And there seems to be good reason for courts to avoid going so far.  [I’m adding a note here about the rule of lenity: In construing an ambiguous criminal statute, a court should resolve the ambiguity in favor of the defendant.]

I have more to say on new evidence that the Don Jr. meeting was probably related to hacking Clinton emails, given the timeline, but for now, I am being more cautious and circumspect about my earlier claims that there is already evidence of a crime. At this moment, I don’t think the Don Jr. emails in and of themselves constitute evidence of a crime. Other context, such as awareness of Russian hacking before June 3, or the campaign focusing on the hacked Clinton/DNC emails immediately after, might relate to criminal violations of the Computer Fraud and Abuse Act of 1986 and other laws.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

9 thoughts on “Re-thinking the “Thing of Value” Campaign Finance Charge Against Don Jr.”

  1. A. I believe that there is a thing of value under the statute within the context of the 2016 reality, which is one in which millions of dollars are paid to political consultants to do something like opposition research. Moreover, all of the distinctions that are bothering you would be relevant if the prior e-mail chain is not in place. In this case, there can be no question about Don, Jr.’s intent. He was not seeking to clarify a record. He was clearly just seeking political gain from a foreign national.
    B. I’m not sure that we need to focus on that in any event because we also have evidence of obstruction of justice that goes all the way to the President.
    1. The Trumpistas clearly know that a judicial proceeding is under way — grand jury in Virginia, which puts all of this stuff under the rubric of obstruction of justice provisions.
    2. We know that even without the obtaining of something of value that there was criminal activity associated with the meeting — Kushner’s now third meeting with a foreign (specifically Russian) national that was not disclosed on his security clearance form. There is no question now that even after had the opportunity to correct prior non-disclosures that this contact was also not disclosed. What possible defense would have left? Possibly reliance on legal advice from the Trump transition team? Would Don McGahn fall on his sword for Kushner, Flynn, Sessions? I’m not sure that’s a defense in any event.
    3. We know that the Trumpistas concocted a phony story on Air Force I in the face of an existing judicial proceeding with the clear intention of covering up this behavior. And, we know that Trump signed off on all of this.
    4. It’s now just a question of time as Mueller will seek to pressure some or all of the folks involved and see how much more he can get out of them.

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  2. Jed- check your last sentence- you used double negatives- what do you mean. I am a bit confused. When I asked you last night ifthere was a case here, you said “yes”, now I am not so sure based on your wriing- Love, Mom > > At this moment, I don’t think the Don Jr. emails in and of themselves do not constitute evidence of a crime, as far as I can tell. >

    Harriet Shugerman hshugerman@verizon.net 301-229-4088

    >

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  3. Professor Shugerman,

    It seems to me that one aspect of this alleged opposition research may (in my untrained opinion) lead one to conclude that there was a “thing of value” being offered. The email from Rob Goldstone said that Crown prosecutor of Russia was willing to provide, not just information, but official documents. If these were publicly available documents, then they would have at best (I suspect) little or no value, and I would not disagree with your reasoning. However, the email suggests that these were government documents of some sort, possibly produced by Russia’s considerable intelligence apparatus.

    Would official Russian intelligence documents be something of value? I’m inclined to think they would be. Your comments, please.

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  5. I disagree that opposition research cannot be viewed as a thing of value in terms of campaign finance. In fact, there are agencies in the USA whose sole job is selling and performing opposition research on candidates. It is clearly a profitable industry; therefore, the services they sell have value or they would go out of business.

    While the First Amendment might apply to mere conversations with foreigners during the campaign, the conversations should not hold anything of value. As you know, the First Amendment is not an absolute right and the courts have made many exceptions to it over the years — particularly in regards to campaign law and the tort of defamation.

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