At the end of yesterday’s post about the meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort and the Russian lawyer, I alluded to the suggestion flying around the internet that the meeting might have violated criminal provisions of federal election law. I deferred commenting on this suggestion until I had a chance to read up on it a bit.
Having done my reading, I incline to two conclusions:
(1) The Russian lawyer meeting was genuinely scandalous and gives real impetus to the general concern that the Trump campaign colluded with Russian interests to affect the 2016 election, or at the least tried to, and (2) While that meeting might form some part of the evidence that Trump Jr. and others violated the federal conspiracy statute, 18 USC 371, or that Trump Sr. obstructed justice in relation the Comey firing, just asking someone who happens to be a foreign national if they have negative information about one’s political adversary can’t possibly be a federal felony.
The statute at issue is 52 U.S.C. 30121, which states:
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.
The Russian lawyer was a foreign national (whether or not she was an official or quasi-official emissary of the Russian government), so it would be illegal for Trump Jr. and company to solicit “a contribution or donation of money or any other thing of value.” The question is whether derogatory information about Hillary Clinton would constitute a “thing of value” under this statute.
For a pretty comprehensive review of the arguments about this, see Dahlia Lithwick’s piece yesterday in Slate. The line-up of legal heavyweights willing to entertain the idea that what political pros call “opposition research” could count as a thing of value under Section 30121 is impressive, but I can’t buy it.
First, on the technical question, I’d side with the last expert Dahlia quotes, Professor Bob Weisberg of Stanford. Under many federal criminal statutes, the phrase “thing of value” includes intangibles, but I think Professor Weisberg is right that, in this context, the law is better understood to refer to things that have readily quantifiable economic value. Negative information about one’s political opponent seems a bit too intangible to me.
But the larger point that all those who think a Section 30121 violation occurred here seem to be missing is the sheer absurdity of their position. If Trump Jr. violated Section 30121 just by asking the Russian lawyer if she knew anything bad about Hillary Clinton, then the same would necessarily be true of any candidate for federal office or representative thereof who ever asked any person who was not a US citizen for unflattering information about an opponent.
Suppose a congressional candidate heard rumors that her opponent was making regular sex tourism trips to Thailand to engage in sex with minors. Can anyone seriously believe that it would be a federal crime to ask a Thai national for proof that this was true?
Or suppose that a presidential candidate heard rumors that one of his primary opponents was falsely claiming to have graduated from Oxford University in England. Would we really suggest that the candidate’s representatives could not legally call up the English citizen registrar of Oxford University to find out the truth?
The proposed reading of Section 30121 is not only absurd, but is probably in fatal tension with the First Amendment. How could the federal criminal law possibly be read to bar candidates in federal elections from seeking information necessary for informed democratic choice from the 7 billion people who don’t happen to be US nationals?
As Mr. Bumble said, the law is sometimes “a ass, a idiot.” But it is not this idiotic.
I repeat that the Russian lawyer meeting is a very big deal. But a prosecutable violation of Section 30121 it was not.