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.

 

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.

Update on Don Jr. emails and criminal case: What is a “thing of value”? What is “collusion”?

When I posted on the breaking news last night, I was working with the claim that receiving opposition research information from foreign sources could be a violation of campaign finance laws. The question is if this information is a “thing of value” and if it could be covered by the criminal statute 52 USC 30121. The problem is that, even if opposition research (“dirt”) is surely something of value, it is also speech. I can find no precedent interpreting information as a “thing of value” under 52 USC 30121, and there is probably good reason for this caution.

There is a lot of damning material in Don Jr.’s emails released today, but nothing makes the meeting more than sharing information.

Here are the new details: Family friend Rob Goldstone identified the lawyer as a “Russian government attorney” who had “documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.”  The material is “ultra sensitive” because it was “part of Russia and its government’s support for Mr. Trump.” Trump Jr., responded, “If it’s what you say I love it especially later in the summer.” It appears that Trump Jr. forwarded this thread to Kushner and Manafort, so they seem to know this context.

On the one hand, it doesn’t matter if the lawyer wasn’t in fact a Russian government attorney and that she didn’t deliver any real information. The issue is intent.

On the other hand, there is no additional evidence that Trump Jr. had any reason to believe that this information was obtained illegally (by hacking or otherwise). My concern is that it may be too big a leap to criminalize the sharing of information from a foreign national or a foreign official.

There is no free-standing crime of “collusion.” A criminal case may turn on a link between the Trump campaign and the illegal hacking, in terms of awareness, coordination, and encouragement. The bigger questions may now be about Kushner and Manafort, their lack of disclosures, and perhaps any lies or obstruction of justice.

 

The Conspiracy Case Against Don Jr. (and Kushner and Manafort and…)

[NOTE: I’ve revised or retracted some of the arguments below in a follow-up post: https://shugerblog.com/2017/07/12/re-thinking-the-thing-of-value-campaign-finance-charge-against-don-jr]

Tonight, the New York Times story is a smoking gun of Donald Trump, Jr.’s criminal conspiracy to collude with a foreign national, but it also entangles Manafort and Kushner rather directly. The New York Times reports, “Before arranging a meeting with a Kremlin-connected Russian lawyer he believed would offer him compromising information about Hillary Clinton, Donald Trump Jr. was informed in an email that the material was part of a Russian government effort to aid his father’s candidacy, according to three people with knowledge of the email.” Yesterday’s Times story reports that Don Jr. pulled Manafort and Kushner into the same meeting, and it wasn’t because they care deeply about adoption policy.

I’m pulling together the work of Bob Bauer and Jennifer Taub here. The relevant statute is 52 USC 30121:

“It shall be unlawful for—

(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election…
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) … from a foreign national.”
As Jennifer Taub pointed out to me, such violations can be prosecuted as crimes.
Keep in mind “a thing of value” includes information, as campaign finance expert (and NYU Law Professor of Practice) Bob Bauer has explained several times.
Also keep in mind that the Russian lawyer met as a representative of the Russian government, but it doesn’t matter: she is a foreign national regardless of her relationship with the Russian government. And it doesn’t matter if the Russian lawyer actually provided any information. The New York Times story, if true, shows Donald Jr. believed that the Russian government was involved in providing information, so he had intent to violate the statute. Thus, he engaged in a criminal conspiracy to violate these post-Watergate campaign finance laws, and between his own confessions to the basic facts on Sunday plus this reported email, Don Jr. doesn’t have anywhere to hide.
Josh Marshall at Talking Points Memo made an important observation today: that five White House insiders or Trump advisers are the sources. Marshall wrote, “The only reason a President’s allies ever do something like that is either to get ahead of something much more damaging or get a first crack at shaping the public understanding of something much more damaging. There’s really no other explanation. We don’t know yet what drove them to volunteer such highly damaging information. Five of them did it. It wasn’t a matter of one person going rogue.”
I’m also struck by suggestions that the White House insiders are conspiring now to pin the blame on Donald Jr. to save the rest of the administration. Kushner and Manafort are now wrapped up into this conspiracy, and they failed to disclose this meeting, among all the others. Have they been questioned by the FBI or Mueller’s team, and did they lie under oath? Now Trump will probably be questioned under oath about the meeting, too.  But perhaps the most important result of these bombshells is political optics. President Trump already has a slam dunk case of obstruction of justice, but the problem had been that it was unclear what he was obstructing. Now the public has a clear story of a crime that Trump was obstructing. And who knows what other shoes will drop next, and which of these co-conspirators will flip next. What does Flynn know? Mueller will be asking, and he has more and more to work with everyday.
[Update: Kushner and Manafort now appear to have violated 18 U.S.C. 4, Misprision of a Felony:
“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”
So now Kushner and Manafort are facing another grounds for indictment, and whoever else knew of this meeting will be facing charges, too.]
Update, 7/11, 8:45am: Randall Eliason has more on these criminal charges at Sidebar:

“The Rise of the Prosecutor Politicians”: Database of Prosecutorial Experience for Justices, Circuit Judges, Governors, AGs, and Senators, 1880-2017

[Update: The Prison Policy Initiative drew on this research for some excellent analysis and graphics about modern “law and order” politics and mass incarceration. Link here.]

I am working on a book project, tentatively titled, “The Rise of the Prosecutor Politician.” My working hypothesis has been that the emergence of the prosecutor’s office as a stepping stone for higher office was a relatively recent/20th century phenomenon with dramatic consequences in American criminal law and mass incarceration.  This year, I will be publishing the first chapter on Earl Warren and his role as prosecutor/Attorney General/candidate for Governor in the Japanese Internment in 1941-42.

I started working on this project after two observations. The first was a very productive engagement with my brilliant Fordham law colleague John Pfaff, who has empirically documented a better explanation for the explosion of mass incarceration over the past few decades: prosecutors have dramatically increased their rates of bringing charges and prosecuting per arrest. I suggested an historical explanation: prosecutors increasingly focus on their job as a stepping stone to higher office. The office draws more ambitious politicians, and those emerging politicians seek a reputation for being tough and crime, and they dread the possibility that they would have dropped the charges against a defendant who later commits a heinous crime, because that “mistake” could jeopardize their ascent or their re-election. (Only Delaware, New Jersey, Connecticut, Rhode Island and D.C. have maintained appointments for prosecutors). They prosecute more arrests out of a combination of ambition and fear.

The second observation was of the failures to convict in a series of deaths of black men killed by police in Ferguson and Staten Island. I suggested that suburban/rural prosecutors generally underperform, and perhaps even sabotage, their prosecutions of police in these cases because of their own political ambitions. Here are three stories:

On August, 9, 2014, police officer Darren Wilson shot and killed Michael Brown in Ferguson, Missouri. The facts of the shooting are still unclear, but it is clear that Prosecuting Attorney Bob McColloch handled the case unlike the way prosecutors handle most cases. He brought the case to a grand jury before the police investigation was complete, he did not endorse any charges, and he presented a significant amount of exculpatory evidence, and called a large number of witnesses whose testimony benefited the defendant, all of which are highly unusual.[1] McColloch even acknowledged that he knew that one of those pro-defendant witnesses was probably lying and had been discredited by investigators. A former judge has filed a bar complaint alleging professional misconduct by McColloch and his staff.[2]

On July 17, 2014, in Staten Island, Officer Daniel Pantaleo, arrested Eric Garner for selling loose cigarettes illegally. After Garner swatted away Pantaleo’s hand, Pantaleo put Garner in a choke hold for fifteen seconds, all captured on video. Garner repeated, “I can’t breathe.” Four or five officers stood by while Garner lost consciousness and did not perform CPR. Garner was dead on arrival at the hospital. Daniel Donovan, the Staten Island district attorney, brought the case to a grand jury, and the grand jury declined to indict on Dec. 3, just a few days after the Ferguson jury declined to indict. About one month later, Donovan declared his candidacy for Staten Island’s seat in the U.S. Congress. He contends that he handed the case to his staff, and he never met with witnesses or stepped into the grand jury chambers once.[3] He has fought efforts by the Garner family and civil rights groups to have the grand jury transcript released. Polling showed that voters approved of Donovan’s handling of the case by almost two to one.[4] Soon after the grand jury declined to indict, Donovan won the House seat by about a 60% to 40% margin.

Meanwhile, after Freddie Gray died in the back of a police van in Baltimore, State’s Attorney Marilyn Mosby indicted six police officers quickly after evidence suggested wrongdoing. Mosby’s constituency is very different from McColloch’s and Donovan’s. Chief Judge Sol Wachtler of the New York Court of Appeals famously said that a prosecutor could get a grand jury to “indict a ham sandwich,” if he wanted to. The real question is whether he or she wants to, and that question often turns on whether the public wants to.

[1] Dana Milbank, “Bob McColloch’s Pathetic Prosecution of Darren Wilson,” (Op-Ed), Nov. 25, 2014; Jeffrey Toobin, “How Not to Use a Grand Jury,” New Yorker, Nov. 25, 2014; Citron, Eric. “Cases and controversies: Not your typical grand jury investigation” http://www.scotusblog.com/2014/11/cases-and-controversies-not-your-typical-grand-jury-investigation/.

[2] Carol Daniel, “Bar Complaint Filed Against McColloch, “http://stlouis.cbslocal.com/2015/01/05/bar-complaint-filed-against-mcculloch/

[3] Alexander Burns, “Daniel Donovan, Garner Case Prosecutor, Defense Record as He Runs for Congress.” (Feb. 24, 2015), http://www.nytimes.com/2015/02/25/nyregion/staten-island-prosecutor-defends-his-record-as-he-seeks-house-seat.html?_r=0

[4] Theodoric Meyer, “Prosecutor in Eric Garner case nears election to Congress,”

http://www.politico.com/story/2015/05/prosecutor-criticized-in-eric-garner-case-nears-election-to-congress-117622.html

There are many layers to the crisis in policing in America, but it is important to note that one factor is that many prosecutors are unwilling to police the police. One factor that makes prosecutors so finely attuned to public opinion: the office of prosecutor has become a stepping stone to higher office in America. Thus, the office tends to attract a more political animal, a more ambitious type. Anecdotally, law students with political aspirations tend to gravitate towards preosecutors’ offices. Then, the stakes in prosecutors’ decisions are often higher than simply whether one keeps a job as a prosecutor or moves into private practice. Life goals are in the balance.

Then I started to research the historical trends: When did elected officials start to have a significant background as prosecutors earlier in their career?  When did the office of prosecutor become a stepping stone for higher office.

I started with the parties’ nominees for president. The pattern was striking. For most of American history, presidential candidates were generally military heroes (so to speak!) or lawyers in private practice. There were more full-time academics than long-serving prosecutors who became president. The handful of presidential candidates who had experience as prosecutors were the exceptions that proved the rule: they seemed to stumble into the office of district attorney as young men looking for jobs, and then very quickly moved laterally to similarly low prestige jobs. Stephen Douglas, Lincoln’s interlocutor, served one two-year term as a state’s attorney, did not accomplish much, and then returned to private practice. Grover Cleveland and William McKinley both served one two-year term as district attorneys, and then flipped and made their names as criminal defense lawyers. Intriguingly, McKinley’s prominent defense of labor activists won the attention of the anti-labor Republican Mark Hanna, who persuaded McKinley to flip against labor. William Taft served one term as a prosecutor straight out of law school, and then switched to the widely-beloved, upwardly mobile office of … tax collector.

Then two names leap off the page from this study, both in the 1930s, one in New York, one in California: Thomas Dewey (of “Dewey Defeats Truman” fame) and Earl Warren (of “Earl Warren” fame). Both were mediocre students, but were enthusiastic about public interest and passionate about fighting corruption. Neither one sought out the office of prosecutor when they began their legal careers in private practice. But both stumbled into their prosecutorial careers at a pivotal re-organization moment in American history: the rise of organized crime and organized labor, mixing with already organized (and increasingly corrupt) political machines. The administrative state and the police were also growing into a more organized power, and along with them, prosecutors gained more power, prestige, and funding. The media were also more organized and national, and the newspapers and movie reels sensationalized crime. They turned urban mobsters into powerful national anti-heroes, and turned local prosecutors into national heroes

Then, with the help of research assistants, we turned to Supreme Court Justices, circuit judges, governors, state attorneys general, and senators from the 1880s to the present.  The Supreme Court Justices is relatively consistent with the pattern of presidents: Very few have any prosecutorial experience until the 1890s. Then some have a few years as prosecutor before they became Justices, but the most dramatic change is in the 1930s through the 1950s, when roughly half of the Justices had significant — even very high profile — prosecutorial background: Owen Roberts, the special counsel in the Teapot Dome corruption scandal; Hugo Black, Frank Murphy, and then five in a row in the 1940s-50s: Vinson, Clark, Minton, Warren, and Harlan II. Again, the shift seems to be in the 1930s through the 1940s.

But our state state-by-state study of circuit judges, governors, state attorneys general, and senators is less clear.  Many states show a rise in prosecutors winning higher office in the 1930s, but many states also show this rise much earlier. More states see an increase in 1900-1920, and perhaps it makes sense that the states would precede and foreshadow a national trend, but the gap is bigger than simply being a first step in the same chain. States have always been far more significant in criminal enforcement than the feds, but this was even more true in the late 19th century and early 20th century. The progressive era witnessed the growth of state government regulation and power over crime, morality, and racial supremacy. Perhaps these other trends help explain the earlier rise of prosecutors in state office.  Some circuit courts also show a trend earlier (4th, 6th, 5th, 7th, 8th), some in the 1930s-40s (9th and DC), and some have seen this trend only later (1st, 2d, 3d).

I am posting this tentative database here, even if it needs additional checking, for a few reasons: 1) I hope to share this research more broadly, because I know some researchers have similar questions recently; 2) I hope to crowdsource some help with checking this documentation and categorization; 3) and I hope to crowdsource some additional interpretation of these trends and patterns.

I want to clarify the color-coding: for the Justices, I put those with prosecutorial background in red, but bold signifies those with significant/prominent prosecutorial experience. In the other charts, red signifies prosecutorial experience, and blue signifies more prominent political figures. I will probably fix this color coding over time to conform to the Justices page. I also want to thank the research assistants on this project: Matthew Grier, Julie Hendrickson, Eleazar Jacobs, and Jessica Lee.  If you have suggestions or comments, contact me at:

jshugerman@law.fordham.edu

Here is the link to the database:

https://docs.google.com/spreadsheets/d/1E6Z-jZWbrKmit_4lG36oyQ658Ta6Mh25HCOBaz7YVrA/edit?usp=sharing

 

 

What if Trump fires Mueller?

  1. First, if he tries on his own unilaterally, Mueller could go to court to challenge Trump’s authority under 28 CFR 600 (don’t worry about that now). But Trump may have the power to unilaterally rescind that regulation. If Trump doesn’t rescind that regulation, an acting AG (Rosenstein, or if he recuses or is fired, the next in line) could appoint someone else, which is why I think Trump will have multiple motivations to rescind it.
  2. MOST LIKELY: A Congressional Committee could hire Mueller to be their lead investigator, and they could hire his team. The Senate Intelligence Committee seems to be the most likely, given Sen. Burr and Sen. Collins being somewhat cooperative so far.  I could imagine the Judiciary Committee also following. Sen. Grassley has been a Trump booster in general, but he has signaled that firing Mueller would be  a bridge too far.
  3. Congress could pass a statute by 2/3 of each House over Trump’s veto to create a new Independent Counsel. An acting AG would need to appoint, in all likelihood. But Congress could decide this new legal office could be appointed by a different cabinet official if the DOJ has descended into chaos due to resignations or firings.
  4. Federalism: New York’s AG Schneiderman could hire Mueller.  This could be part of the quo warranto power that every state AG has over corporations in their state (see my old posts on the background of this power in the Trump emoluments context). Trump Org. is incorporated in New York and Delaware. I presume that other state AGs could investigate financial crimes connected to their states.
  5. Emoluments suits: Each of these civil suits would have discovery over the Trump Organization, and Mueller could be hired by Maryland’s AG or D.C.’s AG or by the Congressional Democrats for full discovery and depositions. The problem is that this power will take more time to move through the courts, to respond to Trump’s motions to dismiss.

ALERT: Trump signals he’s moving towards a new “massacre”

Trump’s tweet around 9 AM this morning must be taken very seriously and very literally:

The DOJ regulations say that only the Attorney General can fire a special counsel (special prosecutor). With Sessions recusing himself, Rosenstein is the Acting AG in this case. Because Trump wants to fire Mueller, he arguably needs Rosenstein to do the firing. (There is a complicated debate about whether Trump can fire Mueller himself). Rosenstein just testified that he believes a president cannot fire a special counsel himself, and that he has no cause to fire Mueller. In fact, Rosenstein knows he would become a target of an obstruction inquiry if he did fire Mueller at this stage.  Just like Nixon’s “Saturday Night Massacre,” Trump wants to fire the AG (Rosenstein) who won’t fire thespecial prosecutor, and that will allow him to find a next-in-line who will.

Just a quick review of the Saturday Night Massacre: Nixon wanted to fire the special prosecutor Archibald Cox, but under the existing statutes and precedents, he thought he did not have the authority to do so himself. He ordered AG Richardson and Dep. AG Ruckleshaus to fire Cox, but they refused and resigned instead. That left Solicitor General Robert Bork (yes, that Robert Bork) next in line, and he fired Cox. His excuse was that, unlike Richardson and Ruckleshaus, he had not made a promise to Congress involving the special prosecutor.

In this case, Trump is looking for his Bork, and then we’re all Borked.

[note: Trump may be trying to force Rosenstein to recuse, for the same effect: shift authority to someone else who would serve as Acting AG to fire Mueller.]