The Steele Dossier, the Clinton campaign, and Trump/Russia: Revisiting concerns with overly broad campaign finance law

This summer, I joined the debate about whether Donald Trump, Jr., committed a crime by soliciting a “thing of value” (opposition research) from a foreign national, under 51 U.S.C. 30121. Inititally, I agreed with many people suggesting that the statute applied to Don Jr., but after a day of reflection, I concluded such a broad interpretation was incorrect, I posted a correction and I went on PBS NewsHour to — gasp! — defend Don Jr.

Now the shoe is on the other foot. Did the Clinton campaign or the DNC solicit a thing of value from a foreign national?  Even before you get to Russians, this part of the statute is a problem for the Clinton campaign, because they allegedly solicited and paid Christopher Steele, who is British (a foreign national), to produce a thing of value.

Then there are questions if the Clinton campaign or the DNC knew Steele would be paying Russian sources.  This MSNBC report from March suggests that Steele “paid his key Russian sources.”  Let’s set aside the question of whether Steele ran afoul of the statute, because the statute arguably requires a certain mental requirement, an awareness of campaign law.  The main point is that if one accused Don Jr., Kushner or Manafort of violating this campaign law for their meeting in Trump Tower with Russian sources, then one should be prepared to acknowledge that the allegations against the Clinton campaign are as strong.

And thus, that question brings me back to my skepticism about whether this statute should be applied to speech and to legitimate research.  Here I am reposting my points from over the summer, with some additional questions and specifics added in:

First, how do we draw a line between an impermissible in-kind donation and information or investigation?  Campaigns often involve questions about events that happened overseas. Would all “opposition research” about those events on foreign soil be criminalized?  It seems that under the law, it might not matter if the campaign pays or doesn’t pay for the research. It’s still getting a “thing of value.” So essentially, a broad application of the statute could 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. Obama knew this document was a forgery, but he would need help to debunk it. So 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.” What if the campaign paid a Kenyan investigator to help navigate the research? Would that payment be criminal?

And here is what I wrote in my original post: “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.”

Now back to October 2017: What’s good for the goose is good for the gander. And it also means that campaign finance statutes have created some huge questions about foreign opposition research that would over-criminalize legitimate investigation. These statutes rightly seek to limit foreign influence, but Congress needs to be amend them to clarify these questions, or courts need to resolve these ambiguities in favor of free political speech.

One final note: If the information is actually illegally obtained itself, that’s an entirely different problem.  The bigger news this week is that Cambridge Analytica solicited more Clinton emails from Julian Assange for the Trump campaign — emails that could only be obtained by criminal hacking. That’s a pretty clear case for aiding and abetting/conspiracy to engage in computer hacking (a criminal violation of the Computer Fraud and Abuse Act of 1986) and to traffic in stolen goods. These are both federal and state crimes.  These allegations are far more serious than the Steele Dossier/DNC news.

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.

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