Sen. Mitt Romney (R-Utah) rebuked President Trump last week following the release of the redacted report summarizing the work of special counsel Robert S. Mueller III. Among other things, Romney said he was “appalled” that members of Trump’s campaign would have welcomed help from Russia in the 2016 election campaign without telling law enforcement and including information that was obtained illegally.
Former New York mayor Rudy Giuliani, now a member of Trump’s legal team, dismissed Romney’s concerns in an interview on CNN on Sunday. “What a hypocrite,” Giuliani said of Romney. “What a hypocrite.”
CNN host Jake Tapper asked why Romney was being described as hypocritical. Because, Giuliani replied, any candidate would have taken negative information about an opponent.
Giuliani appeared to be focusing on the information that Mueller’s report says was stolen from Democrats by Russian hackers and distributed through WikiLeaks. The Washington Post, he said, bore as much blame for reporting on that hacked material as did the campaign.
Tapper again asked why Romney was a hypocrite.
"Because Mitt Romney did things very similar to that,” Giuliani replied.
"Taking information from Russians?” Tapper asked.
"No, no,” Giuliani replied. “There’s nothing — there’s nothing wrong with taking information from Russians.”
Tapper began to question that assertion when Giuliani continued.
“It depends on where it came from. It depends on where it came from,” Giuliani said. “You’re assuming that the giving of information is a campaign contribution. Read the report carefully.”
Let's set aside the political and ethical issues that overlap with accepting the help of a hostile foreign power for a political campaign. Defending why it's ethically questionable to accept that help should be fairly self-obvious. (Later in the interview with Tapper, Giuliani himself clarified that legality was the benchmark at which he was aiming with his comments.)
Let’s assess instead the legal issue: Is there anything legally wrong with taking information from the Russians to help a presidential campaign? Reading the report closely, as Giuliani suggests, offers a clear answer to that question.
There can be.
There were two apparent efforts made by Russia to share information with Trump’s campaign that are addressed in the Mueller report. The first is the June 9, 2016, meeting at Trump Tower in which the campaign was offered dirt on Hillary Clinton through a connection of Donald Trump Jr.'s. The other was the stolen digital information that was released by WikiLeaks in July and October of 2016.
The report is explicit about the legality of the Trump Tower meeting and, importantly, situations like that meeting.
Mueller’s team, referred to as “the Office” in the report, “considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting . . .,” it reads on page 185 of its first volume. “The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (‘knowing’ and ‘willful’), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that ‘the admissible evidence will probably be sufficient to obtain and sustain a conviction.’”
This may sound familiar. Mueller isn't clearing Trump's team on this issue but, instead, saying that they didn't have enough evidence to be able to convict.
We actually addressed this possibility last August, that the Trump Tower meeting itself might be a violation of federal campaign finance law. The law states that foreign nationals can’t contribute to political campaigns and, in the words of former White House counsel Bob Bauer, is “extremely broad” in scope. Its breadth, he said, could mean both that the money spent on getting the attendees of the meeting to Trump Tower might count as a campaign contribution and that the mere acceptance of the meeting could be problematic for Trump Jr.
Mueller's team ultimately decided there wasn't enough there to make a prosecutable case. For one thing, they didn't think that they could prove that the value of the information exceeded the statutory limit. For another, they didn't think they could prove that the violation was willful — that, in other words, Trump Jr. even knew enough about the law to know he might be breaking it.
A key passage in the context of Giuliani’s claims is this one:
“Political campaigns frequently conduct and pay for opposition research. A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value. At the same time, no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law. Such an interpretation could have implications beyond the foreign-source ban ... and raise First Amendment questions.”
Mueller is arguing that accepting opposition research is potentially more problematic than simply taking cash — but that there wasn’t precedent for counting it as a thing of value.
Much of the Mueller report's discussion of the legal questions surrounding the campaign's possible efforts to aid the distribution of the stolen material being published by WikiLeaks is redacted, probably in part as a function of the government's ongoing criminal case against Trump adviser Roger Stone. Stone is alleged to have repeatedly tried to contact WikiLeaks about its releases and, at times, to have informed Trump campaign staffers about what to expect. In July 2016 he was directed by a senior campaign official to find out more information about the documents WikiLeaks possessed. (He repeatedly claimed ties to WikiLeaks, but it's not clear he actually had any.)
That much of the section is redacted makes it hard, as Giuliani suggests when discussing this issue, to “read the report carefully.” The only unredacted part of Mueller’s explanation for not seeking a campaign finance violation charge is again that he didn’t know whether it could be proven that the violation was willful — that is, that the potential violator knew the law. This is not, in any way, a demonstration that members of the campaign potentially working with WikiLeaks was a legally clean act, as Giuliani would suggest. It’s also not clear if the redactions relate to some of the 12 also-redacted criminal referrals listed at the end of the report.
(We also know, thanks to a footnote on page 176 of Volume One, that Mueller considered charging at least one person, perhaps a Russian national or WikiLeaks’ Julian Assange, with trafficking in stolen information in regard to the WikiLeaks material. Since the statute necessitates that the stolen material be physical property and not digital material [or even digital material stored on a physical device], it declined to seek an indictment.)
Both of the discussions of accepting Russia’s aid described above come in the context of campaign finance law. A political campaign is a special circumstance where specific rules apply. The Washington Post can publish material released by WikiLeaks for a number of reasons, including that The Post was not at the time a candidate for public office. Campaigns have to meet a higher legal bar on working with Russia than your average person.
In this case, Mueller did not prove to the world that accepting Russia’s help was completely fine for Trump’s team. He and his team instead determined, among other things, that Trump’s team might accidentally have broken the law — not enough in the eyes of the Justice Department to bring the case to trial.
That’s something that one might expect a former U.S. attorney like Rudy Giuliani to know.