When Talking To a Russian Becomes a Crime

We have all heard the accusations and the solutions- jail time, stripping people of security clearances, fines, immunity, impeachment and, of course, treason.  This all stems from a series of e-mails between Donald Trump, Jr. and some music publicist from Britain.  It has dominated the news since last Friday and has the Left drooling.  CNN is devoting three-hour blocs of time to the subject with somber looking pundits reminding us how the Republic was sold down the river to the Russians in the 2016 election.

Optics are one thing and the law quite another.  According to some election law experts who happen to include a who’s who of Leftists who regularly re-litigate the Citizens United case whenever given the opportunity, by Trump, Jr. attending a meeting where alleged incriminating and sensitive information was offered, it violates federal campaign finance law.

Under the law and Federal Election Commission (FEC) guidelines, foreign nationals are barred from making campaign donations or contributions in money or anything of value to a candidate for federal, state or local offices.  The key phrase is “or anything of value.”  Is opposition research on one’s opponent “anything of value?”  In some instances, it obviously is since an unnamed Republican initially commissioned and paid Fusion GPS to conduct research on Trump, an effort taken over by Clinton supporters after Trump secured the nomination.

In the past, the FEC has defined some information such as contact lists and internal polling information as a “thing of value.”  And one can make a case that compromising information on Clinton would be a thing of value to the Trump campaign despite its source- foreign or domestic.

Eugene Volokh has advanced the theory that these three words in the campaign finance laws could have broad First Amendment implications.  He correctly notes and cites at least three cases dating back to 1945 that the Supreme Court has held that foreign nationals have broad First Amendment rights “within our borders.”

In one case without an opinion, the Supreme Court affirmed a lower court decision that upheld a ban on contributions and expenditures by foreigners based on the premise that doing so limits foreign influence on our elections.  The oft-cited election law expert Rick Hasen, who is often quoted by the likes of CNN, the New York Times and Slate (to name three), usually trots out this case- Bluman vs. FEC,  a case out of the DC Circuit- to make his point.  Conveniently, he leaves out an important finding of the DC Court- that panel of judges stressed that it was limited to the restriction on spending money, not the “anything of value” wording.

It is conspiracy or the often misunderstood collusion for a candidate or their campaign to receive information that they were aware was illegally obtained.  Hacking into an opponent’s server is certainly an illegal act, but there are no indications from anyone involved or the Trump,Jr.-Goldstone e-mail thread that the alleged information being offered was illegally obtained.  This meeting happened on June 9th.  The world was not made aware of the DNC hack until June 14th.  It is true that the DNC knew by May 1st, 2016 that they had been hacked and that it was likely Russians involved, but it was kept secret until June 14th.  Thus, there is no conceivable way Trump, Jr. could have surmised that the information was illegally obtained.  Of course, this is all moot since apparently Ms. Veselnitskaya had no information to relay.

If we construe the “anything of value” aspect of the statute in the manner some experts are claiming, then literally anything offered by a foreign national (or anyone for that matter) is off-limits.  In that case, then to dispel the optics of impropriety, a candidate or their campaign is not allowed contact with any foreigner whatsoever.  That seems highly off the mark.

But, let’s assume it is true.  It makes the analysis no less weak.  Believing that information offered- whether solicited or not- constitutes “anything of value” would render the applicable statute overly broad.  In that instance, it would be unconstitutional.  The overly broad reading of the statute is the only thing that gets Trump, Jr. into any legal trouble.

A one-time offer of information on a political opponent cannot, in this instance, be considered a “thing of value” unless you interpret the law as Hasen and other so-called experts do.  If, however, the information offered is a standard commercially distributed product like polling information, then it could conceivably be considered a “thing of value.”  Again, that is clearly not the case here so once again the point is moot.

As a thought exercise, consider someone sends you an e-mail saying that they have information of a salacious nature about your neighbor- they are a child molester or something like that.  You would naturally be open to receiving that information until you can independently confirm it by searching newspaper articles or a state sex offender registry.  Is that an illegal act?  Of course, if the person said they had information on your neighbor and they wanted $100 for it, you might be willing to receive that information because now they are attaching a value to it.  It must be really good if they want the $100.  You can also be the victim of a scam.

Absent the money aspect of the above hypothetical, it would appear that Trump, Jr. was scammed initially by Goldstone who may have himself been scammed by Aragalov (the Russian oligarch mentioned in the e-mail) and later by Veselnitskaya since she had no such incriminating evidence from the Russian government.  In fact, her rendition of that meeting where she stated the principle people involved (Kushner, Manafort and Trump, Jr.) pushed her for information indicates that she likely was unaware of what Goldstone had written in his e-mail and basically adopted a “What the hell are you people talking about?” attitude.

It should also be noted that at this time (June 9, 2016), Russian interference in the election was not an issue.  It became one on June 14th when the Washington Post revealed the DNC was hacked.  Previous, Russia was portrayed as an adversary and many had noted Trump’s positive statements about Russia in general, and Putin in particular.  The hacking revelations raised the discussion to a new level and it is then that people incorrectly connected dots creating the collusion narrative.

This is no smoking gun revelation.  This is not even a crime.  At worst, this is simply someone making- IN HINDSIGHT- a questionable decision, but one that any campaign operative would have at the very least followed up on.  The only way this rises to the level of criminal activity on the part of anyone at that meeting is if we now declare the voluntary, unpaid for sharing of information, despite its source, a “thing of value.”

What we know now as fact regarding Russian interference was not a known fact when this meeting took place.  It is always easy to say, “They should have called the FBI” in hindsight.  But, if the Clinton campaign did not turn away similar overtures from the Ukraine which are well-documented- and their campaign had more seasoned political operatives- it is quite pretentious and hypocritical for Democrats to climb on a high horse today.  Did Clinton call the FBI?

They say ignorance is no defense when it comes to violating the law.  In this case, there was likely not even a law broken.