By Frank Bowman

In yesterday’s post, I expressed grave doubt about the widely discussed suggestion that the June 16, 2016 meeting between Donald Trump, Jr., Jared Kushner, and Paul Manafort and a Russian lawyer constituted a criminal violation of federal election law. To check myself, I turned to the experts on CrimProf, a listserve that includes a high percentage of the country’s criminal law professors.  I put my analysis before them and asked for feedback.

A lively online discussion ensued, from which I learned a great deal.  I promised the group that I’d try to summarize the main points they raised and share them here, along with my own conclusions.  So here goes:

The law in question – it really is criminal

Title 52, United States Code, Section 30121, makes it unlawful for a “foreign national” to make “a contribution or donation of money or other thing of value … in connection with a Federal, State, or local election.” The statute also makes it unlawful for an American to “solicit, accept, or receive” such a contribution from a foreign national.

A few folks in the national media have raised the question of whether a violation of this statute could be criminal, or whether violations were solely within the province of the Federal Election Commission.  On CrimProf, Professor Peter Henning pointed out that the operative criminal statute is 52 USC Sec. 30109(d), which provides:

(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure–

(i) aggregating $25,000 or more during a calendar year shall be fined under Title 18, or imprisoned for not more than 5 years, or both; or

(ii) aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both.

In other words, an American who “knowingly and willfully” violates the Section 30121 prohibition on contributions from foreign nationals commits a crime.  It was suggested that since Section 30109(d)(1)(A) refers to “any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure” and doesn’t specifically mention “soliciting” a foreign contribution, that it wouldn’t apply to Trump Jr. and friends if, as they claim, they didn’t actually get anything from the Russian lawyer.  That’s a possible reading, but I think the better interpretation is that the quoted language is simply a cross-reference to those sections of federal election law which generally relate to contributions, donations, or expenditures.

“Willfully”

Professor Miriam Baer emphasized that the word “willfully” in the criminal statute is sometimes interpreted by federal courts to require that the defendant was consciously aware that he was committing a crime.  Professor Henning noted that sometimes “willfully” requires only a general knowledge of wrongfulness, citing United States v. Danielczyk.  Particularly, if “willfully” in Section 30109 has the strong meaning, then Trump Jr. and friends could raise two defenses.

First, Trump Jr. and Jared Kushner could argue that, as total political neophytes, they had no knowledge of federal election law and thus couldn’t have acted “willfully.”  Of course, Paul Manafort, a career political operative most of whose business in recent years has been with foreigners, could not plausibly make the same claim.  And the three of them attended the meeting together and presumably discussed its purpose in advance.

Second, as will become clearer below, it would be a real stretch to apply Section 30121 to the Russian lawyer meeting (at least given what we now know).  The best criminal law minds in the country disagree on the point.  The more doubtful it is that going to meet the Russian lawyer was a violation of election law, the harder it is to prove that Trump Jr. and friends acted “willfully” in the sense of being consciously aware that they were doing something illegal.

The big problem – “thing of value”

The doubt I expressed yesterday about the applicability of  Section 30121 to the Russian lawyer meeting was based on the phrase “thing of value.” The Russian lawyer was a foreign national, so it would be illegal for an American to solicit “a contribution or donation of money or any other thing of value” in connection with a federal election. The question is whether what Trump Jr. and company thought they were going to get –derogatory information about Hillary Clinton — would constitute a “thing of value” under this statute.

I argued two things:

First, although in many federal criminal statutes “thing of value” includes intangibles, this election statute seems best understood to refer to things that have readily quantifiable economic value.  Negative information about one’s political opponent seemed too intangible to fit that template.

Second, and more importantly, I argued that applying the law this way would be absurd and probably violative of the First Amendment. If Trump Jr. violated Section 30121 just by asking the Russian lawyer if she knew anything bad about Hillary Clinton, then the same would be true of any candidate for federal office or representative thereof who ever asked a non-American for unflattering information about an opponent.  And that can’t be right.

I heard several responses to these arguments:

The contention that information counts because it has economic value

Some very reputable scholars, including election law experts, have pointed out that federal courts have construed “thing of value” as used in campaign finance statutes to refer to intangibles, including various forms of information.  However, I am unconvinced that any of the cases cited treat pure information, in the sense of negative facts about an opponent, as a thing of value.  All of them appear to deal with services of one kind or another that have an economic value on the open market, such as contributor lists, polling services, campaign literature, and the like.

Nonetheless, on CrimProf, Professor Richard McAdams perceptively observed that, even though it seems absurd to suggest that asking a for information useful to a campaign could be soliciting a thing of value under election law:

There is an absurdity on the other side. If information cannot be a thing of value because it is intangible, then polling firms or research firms could provide mass quantities of information with a serious market value and it wouldn’t matter if the supplier were foreign (or had already maxed out in dollar contributions). So there needs to be some murky distinction between soliciting information by asking a simple question the isolated answer to which requires no great research and therefore has no market value, and asking for a volume of information that would fetch a high price from a research firm.

Professor McAdams went on to suggest that, because the information Trump Jr. expected to get from the Russian lawyer was said to emanate from the Russian government, it might be akin to the product of a commercial research firm and thus constitute a thing of value under the statute.  A lively discussion ensued amongst the criminal law cognoscenti.

Having considered all the arguments carefully, I concluded:

1. Information services would probably fall under the statute.  If a campaign were to approach a foreign-owned polling firm or data analysis company and say, “We’d like you to perform polling or data analysis and give us the results, free of charge,” that would surely count as soliciting something of value.  The same might also be true if the foreign company had already performed the work and was offering the results for sale, or was keeping it secret as proprietary information.
2. But the dividing line can’t be that the information sought happens to be available from a foreign governmental entity that has already expended economically valuable resources to obtain it.  Consider the example in my blog post of yesterday of a campaign seeking information about the rumor that an opponent was a regular visitor to juvenile sex traffickers in Thailand.  Assume that the best source of information about this possibility was the Thai national police.  They would certainly have employed a large, costly investigative apparatus to secure the information in question.  Would we really say that it’s a crime to ask the Thai government about this?

 

Professor McAdams, while conceding the force of this point, remained troubled by the fact that, in this case, Trump Jr. and company were consciously seeking the aid of a foreign government, one traditionally hostile to the United States, that they were told was trying to influence the outcome of the American election.  To put it as mildly as possible, I share that concern.  Indeed, it is this precisely this aspect of the meeting that ought to appall any patriotic American and that makes it so genuinely earth-shaking.

That said, merely because this meeting was self-evidently wrong does not make it a violation of 52 U.S.C. Sections 30121 and 30109(d).  I cannot see how one could sensibly interpret these statutes to prohibit the Trump Jr. – Russian lawyer meeting while permitting the nearly infinite range of informational inquiries by American campaigns to foreign persons and governments that plainly ought to be permissible if the American electorate is to have all the information it ought to have when making democratic choices.

As but one example among many of the complications such a distinction would involve, consider the suggestion of several CrimProf colleagues that it matters that Russia is traditionally hostile to the interests of the United States and was consciously trying to influence the election.  How, for purposes of Section 30121, would one distinguish between hostile and friendly foreign powers? Is China, our largest trading partner, but a geopolitical rival, hostile?  If Russia is hostile now, was it hostile during the Yeltsin era and before Putin?  Does the foreign power have to be both hostile and trying to influence the election?  Or is a desire to influence the election sufficient? A good many of our NATO allies were horrified at the prospect of Mr. Trump as president.  Suppose that an agency or official of one of them possessed damaging, but true, information on Mr. Trump.  Would we seriously propose to make it criminal for a supporter of Secretary Clinton to ask that agency or official for the information?

The First Amendment arguments

I am not a First Amendment expert.  However, in yesterday’s post, I surmised that applying Section 30121 to the Russian lawyer would violate the First Amendment.  After listening to the arguments of those better informed on this point, I am convinced that my original concern is valid.  Rather than trying to summarize the arguments here, I commend my readers to the published debate between Professor Richard Hasen who ridicules the First Amendment in argument in Slate, and Professor Eugene Volokh, who articulates the First Amendment argument for the Washington Post.  Suffice it to say that I think Professor Volokh has by far the better of this argument.

Bottom Line

I remain unconvinced that, based on the known facts, the election law statutes cover what Trump Jr. and company are said to have done.  I am convinced that even if the language of the statutes could be stretched that far, such an interpretation would run afoul of the First Amendment.  Finally, I am absolutely convinced that – absent significant new information – no sensible prosecutor, and certainly no sensible prosecutor with a honest claim to political neutrality, would seek an indictment under the referenced election law statutes.

This by no means changes my view that the Russian lawyer meeting is a huge deal.  It may be relevant, even central, to whether other criminal laws may have been violated. More importantly, it confirms that the Russian collusion investigation is not a wishful figment of the liberal imagination, but is instead a serious business and a serious threat to Mr. Trump’s presidency.

I would nonetheless close on this cautionary note.  As conservative Andrew McCarthy eloquently contends in National Review,  the critical point is not whether the Russian lawyer meeting in particular or the Trump campaign’s contacts with Russia generally were crime, but whether they constitute impeachable matter.  I yield to no one in my disapproval of Mr. Trump, but McCarthy is right that anti-Trump lawyers and scholars err when they strain to shoehorn every Trumpian malfeasance into a criminal statute. At its most extreme, this behavior is both unseemly and hypocritical.  We must be careful to apply the same standards of professional judgement to Mr. Trump and his subordinates that we would apply to political figures we like better.  Otherwise, we risk depleting the credibility of the professoriate, which will be sorely needed in the event criminal charges against Trump administration officials or impeachment of Mr. Trump himself ever become live possibilities.