Plenty of discussion has taken place among the opinion/pundit class regarding Trump’s interview in which he basically says he and the GOP are for sale to any foreign country that will help them win an election. Just as he openly called for a hostile (to the U.S.) foreign power to engage in criminal activity (computer hacking which is a felony) he’s now openly calling for Russia, the Saudis and others (China might well be in the anyone but Trump club) to break our laws and help him (and other Republicans) by doing opposition research on Democrats. You know what? If I go on TV and say I’ll cheat on my taxes having said so on TV won’t keep my ass out of jail. The video of my appearance would be used against me in court! Sadly, I’ve yet to see even our own pundits make that point so far.
At least it’s generating a lot of criticism with plenty of experts pointing out that campaign finance law doesn’t allow foreign governments to make donations, be it money or something else of value to an American political campaign. I wish they’d be (every time) more pointed and not that it’s not just foreign governments but any foreign individual or entity (like a company/corporation) is prohibited by law from making contributions to any U.S. political candidate/campaign from the federal down to the local level.
I’ve discussed 11 CFR § 110.20 - Prohibition on contributions, donations, expenditures, independent expenditures, and disbursements by foreign nationals (52 U.S.C. 30121, 36 U.S.C. 510) elsewhere. If your the type who likes reading statutes here is the writeup on the website of Cornell’s Legal Information Institute.
Now, it’s important to remember there is a threshold for a violation to move from civil (IOW a fine) to criminal status. The short version from this December, 2017 write up on Justice.gov is:
“FECA contains its own criminal sanctions, which provide that, to be a crime, a FECA violation must have been committed knowingly and willfully and, except for campaign misrepresentations and certain coerced contributions, must have involved at least $2,000 in a calendar year. 52 U.S.C. § 30109(d). FECA crimes aggregating $25,000 or more are five-year felonies, and those that involve illegal conduit contributions and aggregate over $10,000 are two-year felonies. 52 U.S.C. § 30109(d)(1)(A), (D). Moreover, all criminal violations of FECA are subject to U.S. Sentencing Guideline § 2C1.8, that the United States Sentencing Commission promulgated in response to a specific Congressional directive.”
Got that? We already have (and have long had) laws on the books making soliciting and or accepting help from foreign nationals, governments or other entities crimes. Now, there haven’t been a lot of prosecutions under this law from what I can tell, but then few candidates/campaigns have been so outrageously stupid or corrupt to do such a thing in the first place. “BT” (before Trump) for virtually everyone it was considered a really bad idea and getting found out would be if not an FEC violation or maybe even jail a political career killer. Now? We’ve got Trump saying “gimme more” and a subservient GOP pretty much saying “I want in on some of that!” Of course, I think a lot of GOP types have looked at special election results at the state level and the results of the midterms and realized that while there’s a lot of shit Trump can get away few others have been able to get away with the same shit. Unlike 2016 when Russia helped a handful of GOP Congress Critters directly (and more via the NRA) folks will be looking for such stuff now. How much Putin or Kushner’s buddy MBS might decide they can get away with is a whole different discussion but I really don’t think it will be carte blanche for the GOP on this.
Well, getting back to the point of my writing this another things I’ve heard and more than once is we need a new law. And I say “NO — we don’t.” Instead we need, or more accurately our elected leaders need to do two things. The first is to keep reminding people that it’s already has been against the law to accept foreign help in ANY U.S. election right down to Mayor or City Council. The second is to change the felony threshold in the current law.’ Ok, I’ll admit there’s some merit to a “duty to report” law I’m hearing about but that too can be inserted into the existing statute.
As you have probably assumed from the title photo the infamous meeting at Trump Tower during the 2016 campaign plays a prominent role in my thinking. More specifically what the Mueller report has to say about that meeting, as in why no criminal charges related to it were filed is I think worthy of discussion. It boils down to how, given that information (“dirt” on Hillary Clinton) was offered as a pretext for the meeting and the “If it’s what you say I love it” response from Don Jr. & the fact his emails to Manafort & Kushner cited the reason for the meeting Mueller couldn’t bring charges. Mueller’s report explains the legal bar for establishing willful intent which last night I heard Chuck Rosenberg again say is an enormous difficulty in just about any white collar crime. Team Trump has maintained a “We were new to all this and didn’t know the law” defense strategy. For me (and others) this strains credulity since Manafort was part of all this. While he’s known to most for his dubious work overseas the fact is he’s done plenty of campaign work here in the U.S. & damn well knew the law. Given that the campaign had long been getting help (including the ins & outs of running an actual political campaign) from not just Jeff Sessions but folks from Session’s Senate staff tasked to the campaign the “We didn’t know” defense certainly is questionable at best.
However there’s another element Mueller pointed out that cuts to the heart of my proposal. We know the “dirt” the Russian group brought was a thin file of old & known Clinton stuff — Team Trump considered it a “nothing new here” and/or “this is pretty lame stuff — where’s the dirt?” attitude once they learned what the Russians were offering. As an aside I’ll mention the whole point for the Russians with the meeting was THEM getting dirt by establishing Team Trump was willing to sit down and work with them. But the main thing is that the file (which was left in Don Jr.’s office — itself an overt act both in giving and accepting it) didn’t require much work (so it seems) on the Russian’s part to assemble. Mueller goes into the difficulty of establishing a dollar value for the “other thing of value” (opposition research) that the Russians handed over. Now, go back and take a look at the thresholds for establishing both Civil and Criminal violations of campaign finance law when it comes to soliciting or accepting help from foreigners. I suppose given what the Russian’s provided was old, not exactly trumpeted in public but still known stuff saying it was worth even 2k, much less ten or twenty five thousand dollars (enough to trigger criminal penalties) was something that would be difficult to establish under the rules of criminal evidence. IMHO the work to assemble the file probably was worth more than 2k but I can see where combined with the other problem of what a good defense lawyer/team could do in court on the “we didn’t know” aspect of defense Mueller and his team concluded that while a conviction was possible, it was significantly less than likely given the evidence they had & it’s my understanding that the guidelines under which federal prosecutors operate preclude filing charges unless there’s a strong likelihood of conviction. One significant difficulty in making a case (as in a well-argued “they didn’t know the law on this”) is one thing, but a second (establishing the value of what was offered & provided met the criminal violation threshold) was too much to overcome. Or at least that’s what Mueller concluded.
So what do we do? Or what should our legislators do? Again I say a new law isn’t the answer, but making changes to the existing one. I have two proposals in addition to adding “duty to report” language into the current law, and they can be spoken of in committee hearing now, finally getting ramped up and also by our candidates running for the nomination.
First, tweak the language on “thing of value” to make it crystal clear that the law covers more than financial donations. Insert “expansion language” and by noting that “other things of value” includes but is not limited to things such as polling date, information/disinformation efforts and opposition research. People smarter than me (lawyers who draft legislation) can work out the exact language but you get my point.
Second, adjust downward the dollar values of the threshold for moving from Civil to Criminal violations of the law currently stand. I’m open to suggestions, but at this point I’m ok with the 2k or under being a Civil violation although as far as I’m concerned it should be 1k or even lower. However, I think the law should be clear that whether the 2k threshold remains or is adjusted either down or up (I don’t agree but I can see an argument for making it 2.7k to match the individual limit for legal domestic donations) as soon as the Civil threshold is reached a violation of the law becomes a felony punishable by two years in prison. Also, I think once the “any other thing of value” reaches 5k then the Criminal penalty should go up to five years in prison.
One last detour on opposition research. I frankly don’t know, but while any of us could go online for a few days & gather up unflattering stuff on any candidate and package it into an “opposition research” report and maybe get a fee of a thousand dollars or so, a real effort at a comprehensive look at someone, even if it’s just online work and scouring through books takes enough effort that any actual person who does such work won’t do it for a national candidate for a measly couple of thousand dollars. Not even close. If the GOP “Never Trump” guy who originally hired Fusion GPS to look at Trump had offered only five thousand for a true, deep dive piece of opposition research they’d have replied “thanks for lunch” and walked away. Hell, as a sub-contractor Chris Steele would have done the same if Fusion had only offered him 5k! I think the same would be true when it comes to organizing and implementing a social media campaign. The ad buys on social media might not amount to much investment but the countless hours involved in developing and running such a campaign would. I’ll guarantee you that while the actual amount spent on FB ads in 2016 was paltry by traditional media ad buy standards, the operation that led to those ad buys cost many tens of millions, if not upwards of a hundred million.
However, I think we should approach this in terms the average person can understand and in dollar amounts they can wrap their heads around since the average person is these days aware that individuals, couples and even business entities are only allowed to contribute small amounts directly to a campaign. Cluttering things up with the work arounds regarding Super PACs is both unnecessary and unadvisable — especially since we are talking about foreign investment in U.S. campaigns.
My suggestions are I think fairly simple and straightforward & easily explained in the heat of a campaign in which foreign efforts to contribute to U.S. political campaigns is going to get a lot of attention. McConnell of course would never allow a vote on this in the Senate, which gives all of our Senate candidates something to use on the campaign trail. Also, our Presidential nominee will be able to hit Trump with it over and over including in the debates. Remember his childish “No puppet — you’re the puppet” last time? Well, we have ample evidence of how he goes ballistic over questions about Russian help in 2016 and the legitimacy of his win. I don’t care how much his handlers tell him not to take the bait — he won’t be able to resist and explosion and or meltdown on the debate stage when directly challenged. If our down ballot candidates have been using the issue, that will create not “coattails” for down ballot GOP candidates but rather an anchor the size it would take to hold an aircraft carrier in place!
So, I’ll wrap this up by one last plea to abandon talk of and efforts to create a new law but instead point out the “other things of value” aspect of the existing law AND to change (and talk about) the threshold of where a civil violation becomes a criminal one.