“Any candidate in the whole world in America would take information, negative … Who says it’s even illegal? Who says it’s even illegal? … There’s nothing wrong with taking information from Russians. … And there were people on Hillary’s campaign that were talking to Ukrainians.”

Rudolph W. Giuliani, President Trump’s attorney, in an interview with CNN’s Jake Tapper, April 21, 2019

“Is it a crime for an American campaign to consider information from a foreign source or to obtain it? If so the allegation that the DNC colluded with Ukrainian officials to generate information to hurt the Trump campaign and help the Clinton campaign must be investigated.”

Giuliani, in a tweet, April 21

In the wake of the release of a redacted version of special counsel Robert S. Mueller III’s report, Trump attorney Giuliani offered a two-pronged defense: (a) There is nothing wrong with a campaign accepting negative information from a foreign government and (b) the Hillary Clinton campaign did something similar.

These are claims that Giuliani and President Trump’s allies have made before, which we have previously fact-checked. We had noted before that the “legal ramifications are in dispute” about accepting help from a foreign government, so “we will leave that for the special counsel to sort out,” especially whether it was a crime for someone in a campaign to accept a “anything of value” from a foreign citizen. Now that Mueller’s report is complete, we will review these claims in that context.

Reminder: The Trump campaign’s initial statement about Russian contacts, via then-spokeswoman Hope Hicks, was a flat denial after a Russian government official was quoted as saying the Russians had contact with members of Trump’s entourage before the election: “It never happened. There was no communication between the campaign and any foreign entity during the campaign.”

The Facts

The Trump Tower meeting

The Mueller report delves into two key instances in which the Trump campaign may have accepted something of value from the Russian government. One is a meeting with Russian-affiliated individuals at Trump Tower in Manhattan in June 2016 that included key members of Trump’s inner circle, including then-campaign chairman Paul Manafort, son-in-law Jared Kushner and Donald Trump Jr.

The other concerns the dissemination of hacked emails via WikiLeaks, but much of that section is redacted, so we will focus on the Trump Tower meeting. (At a rally in July 2016, Trump also expressed hope that Russia would find about 30,000 emails that Hillary Clinton had said she deleted because they were of a personal nature, and he asked people affiliated with the campaign to try to find them.)

The Trump Tower meeting came about after Trump Jr. was told by a contact that the Russian government wanted to offer “official documents and information that would incriminate Hillary” in an effort to assist the campaign. “If it’s what you say I love it,” Trump Jr. responded in an email.

Giuliani, in a phone interview with The Fact Checker, pointed out that the Mueller report said the special counsel decided not to prosecute the Trump campaign officials in part because it could not determine whether the information had enough value (at least $25,000) to trigger a felony count, let alone the $2,000 threshold for any criminal charge. The initial email to Trump Jr. — and his response — suggested uncertainty about whether the material would be valuable, the report said.

Mueller considered whether to bring charges of conspiracy to violate laws prohibiting foreign contributions, especially because emails made it clear to the participants that the meeting concerned information from Russian sources. The report noted a number of court rulings and Federal Election Commission regulations that had determined that polling data and membership lists were things of value.

“These authorities would support the view that candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply,” the report said. But it also said there had been no court ruling that established “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.”

The report added that such a case could raise First Amendment questions — questions that “could be especially difficult where the information consisted simply of the recounting of historically accurate facts.” (Richard L. Hansen, a campaign-finance legal scholar, has called this line of reasoning “bogus.”)

Mueller also declined to prosecute because his team “did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully,’ i.e., with general knowledge of the illegality of their conduct.” Trump Jr. did not consent to a voluntary interview, and Mueller concluded that the Trump White House’s later efforts to prevent the email from becoming public “may reflect an intention to avoid political consequences rather than any prior knowledge of illegality.”

Giuliani noted that the Trump Tower meeting took place before it was publicly known that Russians had hacked the Democratic National Committee. So he argues that communication from Russia would not have raised any alarm bells among Trump campaign staff. Other experienced political operatives have said that any offer of help from a foreign government should have raised red flags.

We asked Giuliani about a famous case during the 2000 campaign — when someone associated with the George W. Bush campaign anonymously shipped a copy of a 120-page debate briefing book, along with a 60-minute videotape of mock debate sessions, to Tom Downey, then a congressman from Long Island who was assisting Al Gore with the debates and playing the role of Bush in mock debates. Downey immediately alerted the FBI; the person who leaked the debate prep materials was eventually charged and sentenced to a year in jail.

We asked Giuliani whether Downey acted properly or whether he should have kept the materials. “Was it a prudent thing to do? Yes,” he replied. “Was it legally necessary? I don’t know. I would have to evaluate it.”

While Giuliani argues that Mueller’s analysis shows that agreeing to accept information from a foreign government during a campaign is not a crime, the report never says that; it simply says the prosecutors doubted they could get a conviction in the particular instance of the Trump Tower meeting.

Indeed, the report also strongly suggests that Trump himself was worried that he had committed a crime. The report says that the president’s conduct, apparently aiming at undermining the Mueller investigation, reflected “potential uncertainty about whether certain events — such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016, meeting between senior campaign officials and Russians — could be seen as criminal activity by the President, his campaign, or his family.”

Ukraine and DNC

While arguing that the Trump campaign’s dalliances with Russia were not illegal, Giuliani also called for an investigation into “the allegation that the DNC colluded with Ukrainian officials to generate information to hurt the Trump campaign.”

This is another old claim, dating back to 2017, but it has received some fresh attention recently in right-leaning media. So far, it still does not add up to much.

There are two elements to this story.

In 2017, Politico revealed that a Ukrainian American Democratic operative named Alexandra Chalupa began looking into Manafort’s ties to Ukrainian politician Viktor Yanukovych, who served as president from 2010 until his ouster in 2014. Chalupa was hired as a consultant to the DNC during the 2016 campaign to help mobilize ethnic communities. She left the DNC in July 2016, the DNC said.

She continued her research into Manafort on her own, sometimes with the help of Ukrainian Embassy officials, and she said she sometimes shared her findings with officials at the DNC and Clinton’s campaign. But former Clinton campaign officials said they never received information from Chalupa.

Separately, a Ukrainian government agency released ledgers that reportedly showed $12.7 million in cash payments from Yanukovych’s party that were earmarked for Manafort. Serhiy Leshchenko, a Ukrainian lawmaker and former investigative journalist, publicized these ledgers and criticized Manafort. Ultimately, reports about these payments prompted Manafort to step down from his position as Trump campaign chairman.

But those two dots so far are not connected. No evidence has emerged that Chalupa’s work was in any way connected to the release of the Manafort ledgers in Ukraine.

In December, a Kiev court said the decision to publish the documents amounted to interference in the U.S. presidential election — a conclusion that Leshchenko said was politically motivated. Ukraine’s top prosecutor announced in March that he had opened an investigation into whether the release of the ledgers was intended to swing the election toward Clinton.

Giuliani hinted darkly to The Fact Checker that more information would soon emerge on the alleged DNC-Ukraine connection. But so far, it’s a facile, unproved comparison.

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"The allegation that the DNC colluded with Ukrainian officials to generate information to hurt the Trump campaign and help the Clinton campaign must be investigated.”
in a tweet
Sunday, April 21, 2019