Trump Wasn't the Only Candidate to Test Our Campaign Laws
Bill Blum
Trump Wasn't the Only Candidate to Test Our Campaign Laws
Donald Trump, left, may be more brazen about flouting campaign regulations,
but Hillary Clinton's 2016 campaign is not faultless. (John Locher / AP)
By now, anyone who pays the slightest attention to politics knows that
Donald Trump told ABC's George Stephanopoulos in an Oval Office interview
last week that he would "take" opposition research on his 2020 election
rivals, even from a foreign source like Russia, China or (eyeroll) Norway.
Trump also said that he might not notify the FBI about his receipt of such
information, and that FBI Director Christopher Wray was "wrong" to suggest
in a recent Senate hearing that the law requires the bureau to be alerted.
Trump's remarks sent howls of "collusion" across the landscape of cable news
and the mainstream press. Pundits asked if the president had forgotten the
lessons of 2016 and the Mueller probe. Had Trump gone, in the words of New
Yorker columnist Susan B. Glasser, from proclaiming "no collusion" to
admitting that he was, after all was said and done, "pro-collusion?"
In a rare display of unity, leading Democrats and Republicans assailed the
president for apparently opening the door to a new round of election
meddling. Even Lindsey Graham-Trump's most loyal congressional enabler-gave
the president a thumbs down. Asked by reporters if he would take foreign
opposition research, Graham replied: "A foreign government comes to you as a
public official and offers to help your campaign giving you anything of
value, whether it be money or information on your opponent, the right answer
is no."
Graham was quick to add, however, that Democrats were just as culpable for
paying ex-British spy Christopher Steele to prepare his much-ballyhooed
dossier on Trump's ties to Russia. "I hope my Democrat colleagues will be
equally offended," Graham said, "by the fact that this actually did happen
in 2016 where a foreign agent was paid for by a political party to gather
opposition research. All those things are wrong."
For once, I find myself in partial agreement with the often-raving sycophant
from South Carolina. In the run-up to the 2016 election, both the Trump and
Clinton campaigns pushed the law governing opposition research and elections
to the limits, albeit in different ways. Alarmingly, Trump's rambling
chin-wag with Stephanopoulos threatens to stretch the limits even further in
2020.
To understand the relationship between opposition research and election law,
it's necessary to go back to the Supreme Court's 1976 decision in Buckley v.
Valeo.
In Buckley, the court drew the now-familiar sharp distinction between
"contributions" made to political campaigns by outsiders and "expenditures"
made by political candidates and their campaign committees. The court held
that Congress, in passing the Federal Election Campaign Act (FECA), could
lawfully restrict contributions to candidates to prevent "quid pro quo"
corruption or the "appearance of corruption." But the court also struck down
important provisions of the FECA, holding that the First Amendment
prohibited Congress from limiting the amount of money candidates and their
committees could spend on elections from their own coffers.
The Buckley ruling would later serve as the legal basis for the court's 2010
decision in Citizens United v. Federal Election Commission, which opened the
door to unlimited "independent expenditures" by super PACs, corporations and
unions.
Both Buckley and Citizens United left intact the FECA's ban on electoral
contributions by foreign persons, entities and governments. As the act
stipulates, it is "unlawful" for a "foreign national, directly or
indirectly, to make 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." The act
also prohibits the solicitation, acceptance or receipt of foreign
contributions, as well as conspiring with foreign nationals to receive
contributions.
For donations worth $25,000 or more, knowing and willful violations of the
act are punishable by up to five years in prison.
The foreign-contribution ban got the Trump campaign and Donald Trump Jr. in
hot water with special counsel Robert Mueller. In his report, Mueller
documented scores of contacts between Russian nationals and the campaign,
including the widely publicized Trump Tower meeting of June 9, 2016, that
promised to provide Junior with "dirt" on Hillary Clinton. Fortunately for
the Trumps, Mueller concluded the contacts were insufficient to establish a
criminal conspiracy.
Mueller also declined to pursue an FECA violation against Junior or anyone
from the campaign because he was uncertain that he could prove the monetary
value of the promised opposition research on Clinton. Even more
significantly, according to the report, Mueller was unsure he could prove
Junior or his associates knowingly and willfully intended to violate the act
in convening the Trump Tower meeting. Ignorance, in the end, saved the day
for the campaign.
Heading into the 2020 election, the ignorance excuse will no longer be
available to the president. After two years of the Mueller investigation and
all the attendant media coverage, no one-not even our blathering 45th
commander in chief-could plausibly claim that accepting opposition research
from a foreign source is legal.
But what about Clinton and the Democrats? With all the attention on Trump,
it's easy to forget the Clinton campaign's election law transgressions
associated with paying for the Steele dossier.
As many election law experts have noted, payments for opposition research,
even if conducted by foreign nationals or governments, aren't considered
campaign contributions. Rather, they are seen as campaign expenditures,
which are lawful and may be not be subject to monetary ceilings, as the
Buckley case long ago instructed.
Nonetheless, the FECA requires candidates and their campaigns to itemize and
report each expenditure in excess of $200 to the Federal Election
Commission. Campaigns are also required to report the "purpose" of each
disbursement. Knowing and willful violations of campaign-finance reporting
requirements are punishable just as severely as knowing receipt of illegal
campaign contributions.
So, what did the Clinton team do wrong in the last election?
In October 2017, the nonpartisan Washington, D.C.-based Campaign Legal
Center (CLC) filed a complaint with the FEC, charging the Democratic
National Committee and Clinton's presidential committee, Hillary for
America, with failing to accurately report the money funneled to Steele.
According to Reuters, Steele was paid $168,000 for creating the dossier. Yet
nowhere is Steele listed in the campaign's FEC filings.
A CLC spokesperson confirmed with me last week that its complaint against
the DNC and Hillary for America remains pending, unrebutted and unresolved
at the FEC.
Whatever the FEC ultimately decides, neither major party, given the past,
can honestly claim the high road when it comes to opposition research and
elections. The Republican National Committee reportedly has already retained
a variety of intelligence firms to conduct opposition research in the run-up
to 2020. It would be truly shocking if the DNC hasn't done the same.
Opposition research may be an intrinsic and unavoidable feature of American
politics, but it isn't too much to demand that our politicians be held to
account, civilly and criminally, for courting foreign influence. And while
we're at it, we should also demand that our leaders, once in office, steer
clear of intruding in elections abroad-something no nation on earth has
perfected more expertly than our very own.
Bill Blum
Contributor
Bill Blum is a former judge and death penalty defense attorney. He is the
author of three legal thrillers published by Penguin/Putnam ("Prejudicial
Error," "The Last Appeal" and "The Face of Justice") and is a.
Bill Blum
