More problems with the campaign finance charge against Don Jr.

The statute we’ve been discussing as the basis for prosecuting Don Jr (based only on what we already know) is 52 USC 30121, soliciting a contribution or “thing of value” from a foreign national. In addition to the problem of applying “a thing of value” to general information and meetings (a 1st Amendment problem and a line-drawing problem, as I’ve written before), it’s also a problem that the conduct might not even be criminal under the statute.

I’ve been trying to find any mention that there is a criminal penalty for 52 US 30121 as applied to Don Jr’s attempt.  This section does not mention criminal liability (jail or criminal fine), nor does the other section in the statute that covers enforcement across the sections, 52 USC 30109 (it doesn’t mention 30121 at all). The only possible criminal penalty would be in 30109(d)(1)(a), but only if the value of the contribution or “thing” exceeds a threshold of $2,000 or $25,000. It’s hard to put any value on the completely ambiguous prospect of some information, and of course, at this stage, the parties claim the value was zero (I’m skeptical, but we are only working with what we know now).  Some have cited government webpages or cases with criminal prosecutions under 30121, but those cases apply only when there was a contribution over those dollar value thresholds, unlike this case.

The bottom line is that it’s not clear that the statute offers any criminal liability for Don Jr, even if the text of the statute (“thing of value”) could apply to the Russia lawyer’s offer of information.

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

1 thought on “More problems with the campaign finance charge against Don Jr.”

  1. I suspect that Don, Jr. is largely a side show to the investigation in any event, although clearly his e-mail statements confirm an intent to collude, if nothing else. How that translates into criminal activity is another matter, but in the case of impeachment actions that may be irrelevant as a breach of public trust may be the more relevant standard in impeachment. Having said that, I do think that your general comments about the difficulty of defining value are relevant in general but not in this case. The value is easy to determine because he has characterized the meeting as an opportunity to obtain opposition research. The consulting value of that is both easy to determine and quite large. Look at the fees billed by Kellyanne Conway to the Trump Campaign — a seven-figure amount. So, he was offered something of value by a foreign national (actually, two foreign nationals — the Russian and Rob Goldstone as agent) for purposes of affecting the campaign. The fact that the information is potentially ambigusous as perhaps protected speech becomes irrelevant in this case because the defendant has already told us what it was to him — opposition research that has an easily quantifiable value.

    Also, he made it quite clear that he wanted to use it to affect the election — later in the summer when it have more bang for the buck.

    I suspect that this was all an effort to see if the Trump campaign would play along with Russian efforts and in fact it confirmed exactly what they wanted confirmed. Trump campaign affiliates wanted the information and they wanted it at a time when it would do the most good.

    In fact, they got it. The release of the WikiLeaks on the day of the Access Hollywood tapes proved to be the most effective possible counter-attack to the disclosure of the incredibly vulgar and in my view illegal behavior of the person elected President of the US.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s