Why Donald Trump Jr.’s meeting with a Russian lawyer probably broke federal election law
Regardless of the meeting’s outcome, its very existence likely violated two sections of the U.S. federal law barring foreigners from electioneering
By Janna Brancolini
It’s too early to predict the full legal fall-out from Donald Trump Jr.’s meeting with a Russian attorney in June, but some legal experts believe at least one thing is clear: the meeting likely violated a federal law prohibiting political campaign activity by foreign nationals.
This week, under pressure from the New York Times, Pres. Donald Trump’s son released a series of emails in which he set up a meeting with an attorney connected to the Kremlin who would supposedly “provide the Trump campaign with some official documents and information that would incriminate Hillary.”
“This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump,” Russia’s intermediary, tabloid reporter Rob Goldstone, wrote.
“I love it,” Trump Jr. replied.
Another email specifically referred to the lawyer in question, Natalia Veselnitskaya, as a “Russian government attorney.” Trump Jr. responded that he would bring Trump Sr.’s then-campaign manager, Paul Manafort, and son-in-law Jared Kushner to the meeting. Kushner is now a White House senior advisor who holds interim security clearance while his top-secret clearance is pending.
Trump Jr. claims nothing came of the June 9 meeting, but Kushner originally failed to disclose it on his security clearance application, along with undisclosed meetings in December with the Russian ambassador and president of the state-run Russian bank VEB.
Experts say that if they were in the position of Special Counsel Robert Mueller, the man tasked with overseeing the Justice Department’s investigation into Trump’s possible campaign collusion with Russia, they would now be investigating charges ranging from criminal conspiracy to espionage in addition to obstruction of justice.
These charges would depend heavily on what happened during and after the meeting. But whatever else Mueller uncovers, some experts say the meeting’s very existence was a violation of federal law preventing foreign nationals from actively engaging in U.S. political elections.
In particular, the meeting implicates two sections of 52 U.S.C. 30121, the federal election law prohibiting “contributions, donations [and] expenditures” of money or any other “thing of value” from anyone who is not a U.S. citizen or permanent resident.
Anyone who “solicits, accepts or receives” said contribution, or who “provides substantial assistance” in the soliciting or making of the contribution, will also be in violation of the law.
Bob Bauer, who served as former Pres. Barack Obama’s White House Counsel in 2010–11 and is now a partner at the law firm Perkins Coie, argued that these violations have been “hiding in plain sight” since at least early June, with this week’s developments offering even more corroborating evidence.
A “thing of value”
The first issue a court would need to decide would be whether the documents and information Trump Jr., Manafort and Kushner sought from Russia were a “thing of value.”
The phrase is not defined in the statute, and a court has never had an occasion to determine precisely what it means in this context.
The Federal Election Commission, however, has usually defined a “thing of value” as whatever goods or services a campaign acquires to advance its electoral objectives. Another regulatory definition specifically includes “all in-kind contributions.”
Again, a court has never decided whether negative or even incriminating information about an opponent, known as “opposition research,” counts as a “thing of value” under the election law. But none of the arguments to the contrary have been compelling.
Orin S. Kerr, a George Washington University professor and former prosecutor, told the New York Times that a thing of value “sounds like something [the campaign] otherwise would buy. If that is the standard, that doesn’t seem to be met, based on what we know so far, because this wasn’t something that someone else could have gathered that was for sale in a market or would be otherwise purchasable.”
Broadly speaking this simply isn’t true, since the Trump campaign paid for extensive opposition research. Whether or not the Kremlin’s specific opposition research was “available on the market” seems like an arbitrary standard with no textual or regulatory support.
Trump had also publicly stated that he valued — at least in the broad sense — information that Russia could potentially provide his campaign.
“I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30,000 emails that are missing,” he famously said during a press conference in June, in reference to emails that his opponent Hillary Clinton had marked as private and deleted during her time as Obama’s Secretary of State.
The First Amendment defense
Some First Amendment scholars have also argued that opposition research cannot be a statutory “thing of value” because otherwise any conversation or information received from a foreign national could be considered an election violation.
A blanket ban on all election-related communication with foreigners would be indeed be a clear violation of the First Amendment’s free speech protections. But a legal distinction that can be made between general conversation and information gathering as opposed to knowingly soliciting information from a foreign individual — in this case representing a foreign government — that is working to advance election objectives.
“The Supreme Court has been clear that free-speech considerations will be read narrowly in evaluating the constitutional limits on the regulation of foreign national electioneering activity,” Bauer wrote in Just Security, a website dedicated to U.S. national security law and policy, on Friday.
“Here the emphasis is on electioneering: the Court affirmed a decision that allows for a foreign national to join wholesale in the public policy debate in the United States.”
Imagine the scenario put forth by Fordham law professor Jed Shugerman: “in 2012, let’s say a newspaper or website published a document purporting to be a Kenyan birth certificate for Barack Obama. Let’s say an Obama campaign official traveled to Kenya to obtain that birth certificate. Would the certificate itself be a ‘thing of value’? What if that official talked to Kenyan officials about how to prove or disprove the authenticity of that birth certificate? Any conversation would be a ‘thing of value.’”
For this particular application, the First Amendment would serve as a defense both for the Obama campaign and for that of his opponent, Mitt Romney.
But imagine instead that the Kenyan government contacted Romney’s campaign saying it wanted to “provide the Romney campaign with some official documents and information that would disprove Obama’s American citizenship. This is obviously very high level and sensitive information but is part of Kenya and its government’s support for Mr. Romney.”
This is very different, both legally and factually, from a campaign’s fact-finding mission to Kenya. And it’s exactly what the Russians said to Trump Jr. through their intermediary, with the words in bold replaced.
The First Amendment is not a blanket protection for all types of conversations. You don’t have a First Amendment right to plan a bank robbery, just as Trump Jr. does not have a First Amendment right to electioneer with a foreign government.
“We do not want to criminalize conversations with a foreign national about American politics, or prevent campaigns from obtaining relevant information from foreign sources,” Bauer wrote.
“We would indeed want to consider criminal penalties in any case of a full-fledged partnership (and significant steps along that path) between a campaign and a foreign government to bring about the mutually desired result of electing the candidate (or defeating his opponent).”
Courts are well equipped to develop statutory definitions that strike this important balance.
Solicitation
The administration has said Trump Jr. only tried to receive incriminating documents and information, but in fact nothing came of the meeting. However, under sections (g) and (h) of 52 U.S.C. 30121, it doesn’t matter if a contribution was actually made — only that it was solicited.
Section (g) says, “No person shall knowingly solicit” a thing of value. “Solicit” is defined as to “ask, request, or recommend, explicitly or implicitly … that another person provide” a thing of value. The solicitation can be oral or written and should be considered in the context in which it is made, which includes the conduct of the persons involved in the communication.
The issue then becomes: was setting a meeting to receive the opposition research the same as soliciting it?
Bauer believes it is. In his post Friday at Just Security, he pointed to three non-disputed facts: “a presidential candidate’s very public, political courtship of a foreign power; that foreign government’s aggressive conduct of activities intended to influence the election; and direct communications with the foreign government’s agents in which the campaign invited that help.”
When Goldstone reached out to Trump Jr., with “ultra sensitive” information that would supposedly incriminate Clinton, Trump replied, “If it’s what you say I love it especially later in the summer.” This looks a lot like a written request for the information.
Trump Jr. then set a meeting with two of the highest-level people in the campaign — the campaign manager and a personal advisor — to receive the information in question. Based on the context surrounding the meeting, anyone who attended — Trump Jr., Manafort and Kushner — could be liable for solicitation.
Substantial assistance
Section (h) of the election law further says, “No personal shall knowingly provide substantial assistance in the solicitation, making, acceptance, or receipt” of a thing value. This means Trump Jr. could be liable both for the solicitation and for substantially assisting in the solicitation, since he set up the meeting between an attorney associated with the Russian government and the top brass of the Trump campaign.
And if anything came of the correspondence and the meeting, all the parties involved could be on the hook for more than just solicitation.
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