Jurisprudence

Mueller’s Unknown Reasoning Could Endanger American Democracy in 2020

It would be extremely troubling if he didn’t indict anyone for the Trump Tower meeting because of the First Amendment.

Robert Mueller
Robert Mueller walks on Sunday in Washington.
Tasos Katopodis/Getty Images

Attorney General William Barr’s decision to release a summary of the twin Robert Mueller conclusions in the special prosecutor’s still-secret report—no collusion between the Russian government and the Trump campaign and Mueller’s punt on whether Trump obstructed justice—leaves open many questions that cannot be answered until the Department of Justice releases the report itself. At the top of my list of unanswered questions is why Mueller declined to prosecute former Trump campaign manager Paul Manafort or Trump’s son Donald Trump Jr. for violating laws prohibiting the solicitation of foreign contributions to American campaigns, based on those campaign surrogates’ June 2016 meeting with Russian agents at Trump Tower. How Mueller answered this question could have profound ramifications for what federal law enforcement will do to stop foreign involvement in the upcoming 2020 elections.

In advance of that Trump Tower meeting, we know that Trump Jr. got an email from his friend Rob Goldstone stating that the “Crown prosecutor of Russia” had “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” This “high level and sensitive information” was being presented as “part of Russia and its government’s support for Mr. Trump.” Trump Jr. replied almost immediately: “If it’s what you say I love it especially later in the summer.” The meeting on June 9, 2016, included Trump Jr., Manafort, the president’s son-in-law Jared Kushner, Goldstone, and a number of Russians connected with the Russian government.

It sure looked like at least Trump Jr. and perhaps others at that meeting committed a crime. Federal law makes it a potential crime for any person to “solicit” (that is, expressly or impliedly ask for) the contribution of “anything of value” from a foreign citizen. In July 2017, I explained why recent history suggests that Trump Jr.’s exchange with Goldstone, on its own, might fit this definition:

Trump Jr.’s “I love it” comment could well constitute solicitation. And there is a very strong argument to be made that “very high level and sensitive information” coming from the government of Russia is a “thing of value” for purposes of federal campaign finance law. The Federal Election Commission has said that providing free polling information to a candidate is a thing of value. It has said that when Grover Norquist’s Americans for Tax Reform gave a list of conservative activists in 37 states to the Bush-Cheney campaign in 2004, this was a thing of value which had to be reported by the campaign, even if the list was publicly posted on the group’s website. It said that Canadian campaign literature which an American candidate wanted to borrow from in his own campaign is a thing of value, even if its value is “nominal or difficult to ascertain.” It said that opposition research provided by a political group to Republican candidates can count as an in-kind contribution. And a federal court, in the prosecution of New Jersey Sen. Robert Menendez, said that a thing of value need only have subjective value to the recipient.

Despite this seemingly strong case, Mueller never indicted Trump Jr. or anyone else for federal campaign finance violations, which seem much more serious than the unrelated “hush money” campaign finance violations to which former Trump lawyer Michael Cohen pleaded guilty and which have implicated the president. Indeed, according to the Barr letter’s characterization of the Mueller report, “The Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

By January, it appeared inevitable that Mueller was going to pass on charging any Americans at the Trump Tower meeting with a campaign finance crime. That was when the special counsel charged longtime Trump confidante Roger Stone with making false statements to Congress, obstructing justice, and witness tampering, in a 24-page indictment. I further described the charges at the time:

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 the 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.”

Absent from those charges against Stone, too, were any campaign finance violations, even though it was at least arguable that Stone too violated the laws against the solicitation of foreign contributions. In my January piece, I elaborated on why Mueller may not have addressed those apparent violations:

[A] 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.

In 2011, then–D.C. Circuit Judge, now Supreme Court Justice Brett Kavanaugh wrote to affirm the constitutionality of laws against foreign spending and contributions in Bluman v. FEC:

It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.

The Supreme Court thought this result was so self-evident it summarily affirmed the lower court judgment without scheduling argument and without issuing a separate decision.

Has Mueller now concluded the opposite? To let someone off the hook who solicited “very high level and sensitive information” from a hostile government—on grounds that there may be cases in which information from a foreign source does not pose the same level of danger to our national security and right of self-government—would turn the First Amendment into a tool to kill American sovereignty and democracy.

If this is what Mueller concluded, we need to know, because it means that Department of Justice officials will not see the need to stop foreign governments from sharing information—even information obtained from illegal hacking—with campaigns, for the purposes of influencing the 2020 elections. And if Mueller based this conclusion on his reading of the Constitution, even new congressional legislation could not stop it, and that seems dangerous.

Now it could be that Mueller had other, less troublesome reasons for not charging Trump Jr. with solicitation. Maybe he thought “I love it” was not clear enough. Maybe he construed federal campaign finance laws so that Russian information did not count as a “thing of value.” Maybe he was just exercising his prosecutorial discretion over political amateurs like Trump Jr., though that would not apply to campaign veteran Paul Manafort.

Mueller’s reasoning matters, and we need to see the full report. And it matters less for what it says about 2016 but what it says about free and fair elections in 2020 and beyond.