Did Trump walk himself into a post-presidential indictment?

As the 2020 elections ramp up, it's worth considering the consequences of foreign interference. Particularly when the president seems unable to hide his openness to committing a crime.
Image: Donald Trump elevator, Trump Tower
President-elect Donald Trump boards the elevator at Trump Tower in New York on Jan. 16, 2017.Dominick Reuter / AFP - Getty Images file
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By Jessica Levinson, professor at Loyola Law School

President Donald Trump is enormously effective at courting legal controversy. Most recently, he appears to be tempting the gods of federal indictments.

Trump declared in an interview with ABC’s George Stephanopoulos that if a foreign national offered him dirt on a political opponent, he would listen to what they offered. Nothing to see here, other than public declaration that he’d likely violate federal law.

Federal election law provides that a person may not “solicit, accept or receive” a contribution, donation or a “thing of value” from a foreign national in connection with a federal, state or local election.

This particular federal law is meant to guard against foreign influence over domestic elections and to preserve the importance of self-government.

This particular federal law is meant to guard against foreign influence over domestic elections and to preserve the importance of self-government. But perhaps now more than ever, our country is threatened by continued attempts by foreign nationals to sway our elections. It is not a coincidence that former special counsel Robert Mueller decided to bookend his short press conference with fears about foreign interference in our elections. This is a real threat to the integrity of our elections, and we are not doing nearly enough about it.

In fact, the president of the United States appears to be open to help from foreign nationals in the next presidential campaign. And he is doing so in a way that in all probability violates federal law.

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Trump's exact words to Stephanopoulos were: “I think you might want to listen …. If somebody called from a country — Norway — ‘We have information on your opponent’ — Oh, I think I’d want to hear it.” If the information was good, “I think I’d take it,” he added.

Sure, this statement is conditional and may be wishy-washy enough to fail to meet the legal standard for solicitation of opposition research from a foreign national. But it likely still amounts to a public declaration of a willingness to commit crime. Trump specifically evidenced the intent to “accept or receive” opposition research from a foreign national.

The big question is whether or not opposition research can be considered to be “a thing of value” under federal election law. The best answer here is that it can be. FEC guidance indicates that a thing of value can include membership or mailings lists of activists and polling data.

There is not a federal court ruling on this issue. Put another way, while no federal court has specifically ruled that opposition research qualifies as a thing of value, no federal court has ruled that it does not.

If these questions and this legal analysis sounds familiar, it is because this is the same analysis contained in the Mueller report. Specifically, Mueller examined whether to issue indictments as a result of the now-infamous June 2016 Trump Tower meeting between members of the Trump campaign, including Donald Trump Jr., Jared Kushner, then-campaign manager Paul Manafort, and a Russian lawyer.

Trump Jr., like Trump Sr. in Stephanopolous’ hypothetical, was offered dirt on a political opponent — in this case, then-candidate Hillary Rodham Clinton. In response to this offer, Trump Jr. replied, “If it’s what you say, I love it, especially later in the summer.” The Mueller report indicates that those attending the meeting on behalf of the Trump campaign were aware of the purpose of the meeting.

But Mueller opted not to indict anyone for three main reasons. First, he vacillated on whether or not opposition research is a thing of value, in part because there is no federal court ruling explicitly saying that it is. Second, and perhaps most importantly, he was not convinced that there was enough evidence to show that the people at the meeting had “general knowledge of the illegality of their conduct.” Put another way, he did not think there was enough evidence to show that people at the meeting knew about the federal law that prohibits candidates and campaigns from accepting a thing of value from foreign nationals. This is akin to the “I’m too ignorant to break the law” defense, and it appears to have worked for those who attended the June 2016 meeting on behalf of the campaign.

Third, in a heavily redacted portion of the report, Mueller brought up First Amendment concerns regarding the ban on foreign contributions. However, even accepting that money given and spent in elections should be treated as speech, the better conclusion is that we have compelling governmental interests in prohibiting foreign interference in our elections.

There is at least one big difference between Trump’s potential criminal liability regarding Stephanopolous’ hypothetical and the criminal exposure to Trump campaign members as a result of the Trump Tower meeting. At this point, after all of the discussion about the foreign-contribution ban, it is much harder to argue that Trump is not aware of the law.

Republicans acknowledged the problematic nature of Trump’s comments but then went on to employ the old schoolyard “I know I am, but what are you” tactic. Specifically, Sen. Lindsey Graham, R-S.C., tweeted that the foreign-contribution ban would also make the Clinton campaign’s indirect payment to Christopher Steele, a foreign national, for opposition research on Trump, problematic.

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But the correct legal argument, explained by University of California at Irvine professor Rick Hasen, is that the foreign-contribution ban does not apply to goods or services that a campaign purchases at fair market value. Put another way, you can pay an accountant who is a foreign national to do accounting for your political campaign, but you cannot accept their services free of charge. If this sounds like a minor distinction, welcome to federal election law.

As the 2020 election campaign ramps up, it is worth considering the consequences of foreign interference. Particularly when the president of the United States seems unable to hide his openness to committing a federal crime.