President Donald Trump may well have committed a new campaign finance crime if he, as reported, pressured Ukraine into providing dirt on a political rival, former Vice President Joe Biden, and Biden’s son Hunter. Unfortunately, special counsel Robert Mueller may have stymied any future DOJ’s ability to enforce that law when he gave Trump’s son Donald Trump Jr. a pass earlier this year on similar conduct. If Trump has again sought foreign assistance in an election, Mueller’s decision not to enforce the law last time around is partly to blame for the president acting with total impunity along with an accompanying decay of democratic norms.
The current charges are serious. The Wall Street Journal reported over the weekend that “President Trump in a July phone call repeatedly pressured the president of Ukraine to investigate Joe Biden ’s son, according to people familiar with the matter, urging Volodymyr Zelensky about eight times to work with Rudy Giuliani on a probe that could hamper Mr. Trump’s potential 2020 opponent.” And in describing the conversation with Zelensky to the press on Sunday, Trump suggested he asked for dirt not just on Biden’s son but on Biden himself. “The conversation I had was largely congratulatory. It was largely corruption—all of the corruption taking place,” Trump said. “It was largely the fact that we don’t want our people, like Vice President Biden and his son, creating to the corruption already in the Ukraine.”
The revelations come after a mysterious whistleblower complaint from someone in the intelligence community last month who reportedly claimed that Trump made “promises” to a foreign leader. As the New York Times further reported, Trump’s “interest over the summer in a Ukrainian investigation into Mr. Biden … coincided with his administration’s decision to hold up $250 million in security aid to Ukraine.” That money was eventually released earlier this month after congressional pressure from both sides of the aisle.
Putting aside whether Trump made promises in order to get Biden-related dirt, or whether his conduct counts as extortion or bribery, there is a good argument that if the facts as reported are true, Trump committed a new campaign finance crime. (Trump has already been directly implicated in Michael Cohen’s campaign finance offense related to the Stormy Daniels payment, for which the president’s former lawyer is currently serving prison time). The case against this sort of behavior as a campaign finance crime was much stronger, though, before Mueller issued his report investigating foreign interference in the 2016 elections and refused to prosecute Trump Jr.
Federal law makes it a crime for any person to “solicit” any “thing of value” from a foreign national. Could Trump pressing Ukraine’s president to help his candidacy by investigating a political rival qualify as a crime under the statute?
The identical issue came up with Trump. Jr.’s Trump Tower meeting during the 2016 election. As readers may recall, during that presidential campaign, 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 subsequent meeting, held on June 9, 2016, included Trump Jr.; Trump’s campaign manager Paul Manafort; the president’s son-in-law Jared Kushner; Goldstone; and a number of Russians connected with the Russian government.
One of the things Mueller investigated was whether the meeting violated the federal law against soliciting foreign assistance in an election. Mueller in his report acknowledged that under court and Federal Election Commission precedent, opposition research can count as a “thing of value” for federal campaign finance purposes. He nonetheless declined to prosecute Trump Jr. for four reasons.
First, Mueller said that did not find enough admissible evidence that Trump Jr. or other Trump campaign officials acted “willfully.” To make a campaign finance violation a crime, one must know one is committing a crime. Trump Jr. would not sit down for a voluntary interview with Mueller and the special counsel regrettably did not subpoena Trump Jr. to testify to get at his mental state, but Mueller determined “the government has not obtained admissible evidence” that was likely to prove Trump Jr.’s willfulness “beyond a reasonable doubt.” Second, Mueller defined the law narrowly to require greater proof of “coordination” before a solicitation could be found. Third, he said he wasn’t sure that the value of the information was at least $25,000, the necessary threshold to make it a crime. Fourth and finally, Mueller said that prosecuting Trump Jr. could raise free speech questions. As I noted at the time, the First Amendment defense is bogus:
The main First Amendment argument is that a ban on soliciting foreign political contributions is overly broad and could apply any time a foreign individual gives any information to a political campaign.
But Trump Jr. was a major campaign official meeting with representatives from a foreign government that were offering “dirt” on the campaign’s opponent. As I [have written], “To let someone off the hook who solicited ‘very high level and sensitive information’ from a hostile government because there may be cases in which information from a foreign source does not raise the same danger to our national security and right of self-government is to turn the First Amendment into a tool to kill American democracy.”
Further, even if Mueller believed there were First Amendment questions in play, he should have left that for the courts to decide given the strong national security interests at stake here. Mueller offered no First Amendment argument in his report. He merely flagged the issue and never provided any analysis to back up the First Amendment claim.
I’m afraid that this flagging of the issue does more harm than good. Mueller has now given campaigns credible reason to believe they can accept help from foreign governments because they may have a constitutional right to do so. That’s even more troubling for what it says about 2020 than what it says about 2016.
And now here we are in the 2020 election season with Trump and Ukraine. Thinking of the four concerns raised by Mueller, the first three elements do not save the president in this case. As to willfulness, there’s no way the president does not know that the solicitation of foreign opposition research constitutes a crime following the Mueller probe. He was even pressed on this by George Stephanopoulos last year and said he might accept such research again, which resulted in the head of the Federal Election Commission releasing a statement to once again clarify that, yes, this would be a crime. We will likely have a recording and a transcript of the Ukraine call, so evidence of the solicitation itself will be easy to find if it exists. Third, Biden is the leading Democratic presidential candidate who has a good chance of running directly against Trump in the 2020 election; of course any “dirt” on Biden would be worth more than $25,000.
So this leaves the First Amendment defense. Thanks to Mueller, Trump can plausibly claim he has a First Amendment right to go to a foreign government to solicit—even potentially extort—valuable information against political opponents. If the First Amendment protected this conduct from Trump, why even hold elections?
Ultimately, the best legal argument is that Trump committed a campaign finance crime if he solicited dirt on Biden and his son, as appears to be the case, regardless of whether there was any quid pro quo. But Mueller, despite expressing concern about potential foreign interference in the 2020 elections in his recent testimony before the House Judiciary Committee, may have given Trump a green light through his own report.
Karl Marx once wrote that history repeats itself, first as tragedy then as farce. In this case, I think it is the opposite. The Trump Tower meeting was a farce. The president’s brazen actions now, if proven, will be a tragedy for American democracy.