Jurisprudence

Is Jared Kushner Illegally Coordinating With Kanye West?

Rapper Kanye West, second right, flanked by NFL Hall of Famer Jim Brown, right, speaks during a meeting with President Donald Trump, left, in the Oval office of the White House on October 11, 2018 in Washington, DC. Next to Trump, Ivanka Trump and Senior Advisor to the President, Jared Kushner.
Trump and Kanye meet. Oliver Contreras - Pool/Getty Images

This week Forbes broke the story that Jared Kushner, “de facto chief” of President Donald Trump’s reelection campaign, has been speaking “regularly,” “almost daily,” with Kanye West since West’s July 4 tweet declaring that he is running for president. “Regular” conversations between the head of one presidential campaign and an opposing candidate looks like coordination and is highly irregular. Depending on what they’re talking about, they may be breaking campaign finance laws.

A provision of federal law known as the “soft money ban” prohibits candidates and their agents like Kushner from soliciting contributions that exceed amount limits or come from prohibited sources (e.g., foreign contributions). Federal law defines “contribution” broadly to include “any gift … of money or anything of value made by any person for the purpose of influencing any election for Federal office” and “anything of value includes all in-kind contributions.” Contributions from one candidate committee to another are limited to $2,000. And the FEC by regulation defines “solicit” to mean “to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”

If Kushner has explicitly or implicitly requested or recommended that West spend money on West’s candidacy, with the motivation of having West siphon votes from Joe Biden, then Kushner has arguably violated federal law by soliciting in-kind contributions from West to Trump in excess of the applicable $2,000 contribution limit. Under this theory, every dollar West spends on his campaign with Kushner’s encouragement is an in-kind contribution. And West has spent well in excess of $2,000 on his campaign efforts to date, including, for example, payment of $35,000 filing fee to the State of Oklahoma to have his name on the ballot.

Kushner knows all of this; he’s been through this illegal solicitation business before. As I explained in a summary of a section of the Mueller Report, Special Counsel Robert Mueller investigated Kushner and other members of the Trump campaign for possible illegal solicitation of an in-kind contribution from Russian foreign nationals at a 2016 Trump Tower meeting. Mueller concluded that team Trump’s solicitation of opposition research on electoral opponent Hillary Clinton could constitute an illegal solicitation of a contribution from a foreign national. But Mueller decided not to prosecute Kushner and others, in part, because of a lack of evidence that Kushner knew at the time that what he was doing was illegal (knowledge of the law is necessary for a criminal conviction in this area), and because of possible challenges proving the value of the solicited opposition research.

In addition to the federal law “soft money” solicitation restrictions, federal law “coordination” restrictions may also be applicable to the actions of Kushner and West. Federal law provides that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate … or their agents, shall be considered to be a contribution to such candidate.”

Whereas the focus of the “soft money” solicitation analysis is on Kushner, the starting point for “coordination” analysis is West’s specific expenditures. In this instance, the analysis is complicated by the fact that baked into the coordination legal framework is the notion that the spender is intentionally trying to help the candidate with whom they are coordinating. West may be sincere in his efforts to win the presidency. That said, in an earlier interview with Forbes, West indicated he knows his campaign would help Trump. As Forbes’ Randall Lane also reported, West has been a vocal Trump supporter and “texts from West to me earlier this summer repeatedly ended with the sign-off ‘Trump 2020.’”

But Forbes reports that those close to West are worried about his mental health—and concerned that Kushner is taking advantage of him for the benefit of the Trump campaign. For these reasons, combined with Kushner’s experience with this area of law, scrutiny for possible campaign finance violations is more appropriately placed on Kushner than on West.

The fact that these news reports have given rise to public commentary clearly setting out what the law prohibits makes it more difficult for either one to claim ignorance of the law going forward.

As noted in the opening paragraph, whether Kushner is violating the federal law “soft money” solicitation provision depends on what Kushner and West are discussing in their “almost daily” conversations. The Forbes story quotes West saying to associates: “Jared’s scared and doesn’t want me to run because he knows that I can win.” The story goes on to explain:

That message, the sources close to West acknowledge, is the exact one that will embolden West to stay in the race. “If you know him for more than 20 minutes, you know that will work,” says one West confidant. Adds another: “He’s just like a kid. The more you tell him he can’t do a thing, the more he’ll do it…. he has a tremendous drive to prove people wrong.”

One of West’s close associates “described their understanding of Kushner’s conversations with West as ‘reverse psychology.’” Forbes reporter Randall Lane concludes his piece by aptly referencing Kushner’s earlier run-in with campaign finance law solicitation restrictions noting: “Others prescribe less malicious intent, though that narrative would require a level of naiveté that would rank up there with sitting in a meeting at Trump Tower with Russians who promise to have dirt on Hillary Clinton.”

If Kushner has literally been discouraging West from running for president—even if he’s using “reverse psychology”—he’s probably not violating the federal law “soft money” solicitation restriction. Though the FEC regulation defining “solicit” includes both explicit and implicit requests for campaign help, the regulation goes on to state that the communication must “contain[] a clear message asking, requesting, or recommending that another person make a contribution … or otherwise provide anything of value.” Reverse psychology seemingly would not qualify as a “clear message.” Kushner may have found a “reverse psychology” loophole in federal campaign finance law. But if Kushner is going beyond discouragement, for example, providing West with political intelligence about states in which West would do better or worse, then Kushner may be making illegal in-kind contributions to the West campaign and the argument that Kushner’s illegally soliciting campaign support from West is strengthened.

Other reporting this week about a lawyer, who represents the Trump campaign in an election-related Wisconsin lawsuit, submitting West’s paperwork to qualify for the ballot in Wisconsin only adds to the perception that the Trump campaign is encouraging West’s candidacy for Trump’s own benefit. The Trump campaign is pushing some legal boundaries. Common Cause will be keeping an eye on this matter, ready to file a complaint if and when sufficient evidence emerges that the Trump campaign has gone over the line.

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