[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.