Consider two different points of contact between Russian nationals and people working for the two major-party presidential campaigns in 2016.
There’s the meeting in June 2016 at Trump Tower, in which Donald Trump Jr., campaign chairman Paul Manafort and Donald Trump’s son-in-law Jared Kushner met with a lawyer with connections to the Russian government. The lawyer, Natalia Veselnitskaya, apparently proceeded to outline how a businessman facing questionable criminal charges in Russia allegedly made donations to Hillary Clinton’s campaign.
Then there’s the hiring of former British intelligence officer Christopher Steele to dig up dirt on Trump on behalf of a research firm paid by a law firm working for Clinton’s campaign and the Democratic National Committee. Steele’s research involved talking to Russian government officials about what Trump and his campaign might have done, which Steele then compiled into reports that were eventually shared with federal law enforcement officials.
Most of the political conversation has centered on the impropriety and possible illegality of the first point of contact while not raising similar concerns about the second. President Trump has deliberately and regularly conflated the two, arguing that the former meeting was innocuous and that the real malfeasance — the real collusion — was between Clinton’s campaign and those Russians who were speaking to Steele.
Trump is incorrect. There is no reason to think that Clinton’s campaign is culpable for any illegal act related to the employment of Steele and good reason to think that the law was broken around the meeting at Trump Tower — and that members of the Trump team might face legal consequences.
At issue is a federal statute stipulating that foreign nationals cannot contribute to political campaigns. That law, though, doesn’t just bar cash donations.
“The statute’s written very, very broadly,” said Bob Bauer, a former White House counsel under Barack Obama who now teaches at New York University Law School. “It applies to promises of support — promises express or implied. It applies to independent expenditures, meaning those with express advocacy. It applies to any expenditure, meaning those that may not be express advocacy expenditures but are for the purpose of influencing the federal election. It applies to disbursements. It is extremely broad.”
The law was first passed in 1966. It was strengthened in 1974 and, under the McCain-Feingold campaign finance law, in 2002. It bars any contribution, even a small-donor contribution, from a noncitizen and puts strict limits on the involvement of foreign individuals or organizations. Further, and importantly, the law prohibits any American from aiding any of the above efforts. We noted last week that “collusion” can be another word for “conspiracy,” and that those aiding a Russian effort to provide illegal assistance or soliciting that assistance could be held criminally liable.
In the case of the Trump Tower meeting, Veselnitskaya came to the United States with information that was pitched to the Trump team (Trump Jr. specifically) as damaging to Clinton. That was something of legal value, even if the campaign didn’t find it useful.
“They’re spending money both to acquire the information. They’re spending money to distribute the information. They clearly didn’t walk from Moscow,” Bauer said.
And, of course, it’s not as though the Trump campaign suddenly found an unexpected manila folder of information slipped under its door.
“The Trump campaign invited them to come. It was a proposition that was offered, and it was accepted,” Bauer said, referring to the exchange of messages between Trump Jr. and music publicist Rob Goldstone that set up the meeting itself — an email exchange that indicated the offer was “part of Russia and its government’s support for Mr. Trump.”
“The law prohibits Americans from soliciting foreign nationals’ assistance,” he added. “The solicitation provision is very broad. You don’t have to specifically say, ‘I really would like you to do X’; you could indicate, since they’ve already said they want to help you out, that you’re open for business. That you actually want their support.”
Bauer notes that the “conspiracy to defraud the United States” charge filed against the Russians involved in attempts to manipulate Americans over social media “was built around the concealment of this activity from regulators that prevented the Federal Election Commission from enforcing the provisions” of the statute above. Others, he argued, might similarly be charged in the same way. (As The Post reported on Sunday, Trump has expressed some concern that his son may have unwittingly crossed legal lines with his actions during the campaign.)
So why doesn’t all of this apply to the pathway linking Clinton, the law firm, Fusion GPS and Christopher Steele? For a few key reasons.
One argument is that, since Steele is not a U.S. citizen, he would be barred from involvement in the campaign as surely as the Russians should have been. Lawrence Noble, former chief counsel for the FEC, explained the difference in the situations over email.
“Paying a foreign national fair market value for opposition research is generally not illegal,” Noble wrote. “It is considered a commercial transaction, which is not a contribution.” Clinton’s campaign had paid Fusion GPS directly; it’s a campaign expenditure, not a campaign contribution. Since it’s not a contribution, the FEC allows it.
Steele was hired by Fusion GPS to see what links might exist between Trump and Russian actors. Those connections, built during his service for the British government, were why he was valuable to Fusion GPS. It’s akin to a campaign looking to investigate an opponent’s history of real estate deals in Mexico: Hiring a Mexican firm that’s familiar with the available records would be perfectly legal, if the firm were paid with legally raised campaign contributions.
“I think there is something fundamentally different about the interference when it comes from a foreign government, as opposed to a foreign national individual or even business,” Noble added. “The campaign finance law doesn’t explicitly make that distinction, but it does implicitly show up in some FEC decisions regarding individuals. For example, a foreign national individual can undertake volunteer activity for a campaign, while a government can’t.”
Bauer noted that, since foreign nationals aren’t entitled to the same constitutional protections as Americans, it was rare for the campaign prohibitions to be tested. But the question of whether even a small contribution to a campaign could be made by a foreign national was at the center of Bluman v. Federal Election Commission, upheld by the Supreme Court in 2012. In that case, a D.C. Circuit Court panel determined that such contributions could not be allowed because “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.”
The majority opinion in that case was written by Brett Kavanaugh.