Why didn’t special counsel Robert Mueller charge self-proclaimed dirty trickster Roger Stone with violating campaign finance laws? And what does this say about Donald Trump Jr.’s potential exposure for his Trump Tower meeting with Russians offering dirt on Hillary Clinton?
In today’s 24-page indictment of Stone, Mueller charged the Trump adviser with making false statements to Congress, obstructing justice, and witness tampering. The whole set of facts relates to Stone’s lying and blocking information about his contacts with WikiLeaks during the 2016 campaign regarding hacked emails from the Democratic National Committee and John Podesta. Stone was in contact with the Trump campaign too, which was very interested in material that could hurt Hillary Clinton.
Among other things, the indictment alleges that “a senior Trump Campaign official was directed to contact STONE about … damaging information” that WikiLeaks “had regarding the Clinton Campaign.” Stone wrote to his WikiLeaks intermediary passing on the campaign’s requests for specific information that group might have regarding the Clinton Foundation. Later, he asked WikiLeaks “for any State or HRC e-mail from August 10 to August 30—particularly on August 20, 2011 that mention [the subject of the article] or confirm this narrative.”
To Common Cause’s Paul S. Ryan, the indictment, if true, is enough to show Stone and the Trump campaign in a conspiracy to violate federal law against soliciting contributions from a foreign national. Federal law makes it a potential crime for any person to “solicit” (that is, explicitly or implicitly ask for) the contribution of “anything of value” from a foreign citizen. And as Ryan points out, opposition research is valuable and can count as a campaign contribution.
If this issue sounds familiar, that’s because it’s also relevant to the meeting with Russian officials in Trump Tower who were offering dirt on Hillary Clinton. As I explained in Slate in July 2017, that meeting could have violated the prohibition on soliciting a contribution from foreign nationals.
So why did Mueller not charge Stone with violating campaign finance laws along with the other charges in the indictment? We don’t know for sure, but there are a few possibilities.
One possibility is that because WikiLeaks might count as a “news organization,” different campaign finance rules should apply. For example, one can imagine a presidential campaign official seeking out information with reporters from a foreign newspaper like the Guardian. We treat journalists differently for a number of campaign finance purposes, and it might be that WikiLeaks is shielded in a way that other foreign entities are not. Indeed, Glenn Greenwald and Trevor Timm, writing at the Intercept, attacked the DNC for suing WikiLeaks over the hack of DNC emails, arguing that such a suit interferes with the press’s freedom to cover leaked information.
If that’s the theory, then there still could be charges against Donald Trump Jr. for the Trump Tower meeting, which was with Russian officials who were not the press.
Another, broader possibility is that opposition research or information supplied by foreign nationals with their own agendas should be protected by the First Amendment and not subject to a campaign finance suit. Eugene Volokh advanced this argument in connection with the Trump Tower meeting, and I’ve explained in Slate why I think this view is bogus. But Mueller’s team might not think it’s bogus, which could explain why the Russians indicted by his office were not charged directly with campaign finance violations.
A third possibility is that campaign finance charges will come later. If Stone were charged today with violating campaign finance laws, then the Trump campaign (or people within the Trump campaign) should be charged, too. They were involved in the same (potential) conspiracy. Perhaps Mueller is saving these charges until the end of his investigation, when he could also seek to indict Trump Jr. in the same kind of conspiracy. Delaying such a move would make sense, for surely it would lead Trump to consider ordering his attorney general to fire Mueller.
Regarding the investigation into the 2016 election, I’ve said all along that we don’t know what we don’t know. This is yet another mystery. But it’s possible that Mueller’s failure to charge Stone with a campaign finance violation while charging him with other crimes could indicate that Trump Jr. might be facing less legal jeopardy than it once appeared.