At issue was Trump Jr.'s June 2016 embrace of an offer of dirt ostensibly coming from the Russian government. “If it’s what you say I love it,” Trump Jr. said of the offer, an undoubtedly honest reaction. Information undermining Hillary Clinton would be of substantial use to his father’s campaign as it transitioned into a general election fight against the eventual Democratic nominee. That it was coming from Russia doesn’t appear to have been much of a damper, despite the fact that accepting electoral assistance from a foreign actor is a violation of federal law.
“The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context,” Mueller’s report reads (Vol. I, p. 187). “The government does not have strong evidence of surreptitious behavior or efforts at concealment at the time of the June 9 meeting” — and efforts to hide the meeting in 2017 may have been linked to political, not legal, considerations.
This wasn’t the only reason that Trump Jr. wasn’t charged. Mueller’s team also questioned whether what was being offered was demonstrably worth more than the minimum set in the statute. So Trump Jr. skated.
By July 25 of this year, though, it’s hard to see how Trump Jr.'s father, President Trump, wouldn’t have been aware of the legality of soliciting, accepting or receiving “a contribution or donation of money or other thing of value” from a foreign actor. Contribution here doesn’t just mean money; it includes “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” “Anything of value” includes information.
While Trump almost certainly didn’t spend much time exploring Mueller’s findings, he clearly understood where the problem was. After he told ABC News’s George Stephanopoulos in early June that he would probably accept electoral assistance from a foreign power, he quickly reeled that back in. While you’d “have to look at it,” he would then “give it to the FBI or report it to the attorney general or somebody like that,” he said.
When, on July 25, Trump told Ukrainian President Volodymyr Zelensky that he wanted Ukraine to dig into a derogatory theory Trump had about former vice president Joe Biden, Trump may not have been explicitly considering the legal ramifications. He should, however, have known why the request might have been legally problematic. The inspector general for the intelligence community understood why it was a problem and, alerted to the conversation by a whistleblower, asked the Justice Department to evaluate whether Trump had indeed violated the law.
Justice’s criminal division “reviewed the official record of the call and determined, based on the facts and applicable law, that there was no campaign finance violation and that no further action was warranted,” a statement from the department read — a statement released in concert with the rough transcript of the call last week. “All relevant components of the Department agreed with this legal conclusion, and the Department has concluded the matter.”
It’s not surprising that the Justice Department under William P. Barr would decline to take issue with Trump’s actions, given the existing pattern of shruggery the attorney general’s team has directed at the president. But without the department explaining why it reached its decision, it’s impossible to evaluate the Justice determination on the merits.
“China should start an investigation into the Bidens, because what happened in China is just about as bad as what happened with Ukraine,” Trump said to reporters. China, in other words, should try to dig up dirt on Joe Biden and his son Hunter — information that, if generated, would certainly be of use to Trump in a possible general-election fight against the leading candidate for the Democratic Party’s 2020 nomination.
“I don’t think it is credible that Trump has some other reason for seeking foreign investigations of Biden other than to help his 2020 campaign,” former Federal Election Commission general counsel Larry Noble told The Washington Post over email. “It is the only context in which Biden is relevant to Trump.”
Noble pointed out that Trump had even tried to obfuscate the target of his request to Zelensky before the rough transcript was released, insisting that he had been pushing Zelensky to act on corruption broadly. That rough transcript, though, makes clear that Biden — a potential political opponent — was the sole focus of Trump’s “corruption” concerns.
After the Mueller report was released, Noble publicly disagreed with the special counsel’s determination on campaign-finance violations. The Mueller report evaluated the value of the Trump Tower meeting as follows.
“Although damaging opposition research is surely valuable to a campaign, it appears that the information ultimately delivered in the meeting was not valuable,” the report reads. “And while value in a conspiracy may well be measured by what the participants expected to receive at the time of the agreement ... [the] description of the offered material here was quite general.”
This case is more straightforward in Noble’s view.
What Trump is doing now “doesn’t have the same problems of valuation Mueller found with the June 2016 Trump meeting,” Noble wrote. “For example, Mueller expressly noted that research on an opponent could be of great value to a campaign, but he was concerned about the vagueness surrounding the information being offered. Here, we know what Trump is asking for”: information linking Biden to corrupt acts.
Bob Bauer, a former White House counsel under President Barack Obama who now teaches at New York University Law School, described in a phone conversation with The Post last year how value was determined.
“They’re spending money both to acquire the information,” Bauer said of the Russians involved in the Trump Tower example. “They’re spending money to distribute the information. They clearly didn’t walk from Moscow."
“And the Trump campaign invited them to come,” Bauer added. “It was a proposition that was offered, and it was accepted.” That sets a fairly trivial bar for exceeding the $2,000 threshold establishing a criminal violation, much less the $25,000 that would make it a felony. Like Noble, Bauer disagreed with Mueller’s decision.
At the time we spoke last year, Bauer pointed to a 2012 court decision, which bolstered the idea that the foreign influence should be kept out of the electoral process, Bluman v. Federal Election Commission. It’s a decision that Noble also identified in his disagreement with Mueller’s determination about Trump Jr.
“[I]t 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,” then-D. C. Circuit Court Judge Brett M. Kavanaugh wrote in the majority opinion.
Put simply then: It’s hard to argue that (a) Trump wasn’t aware that soliciting help from a foreign power was problematic, (b) there’s no or little value in what Trump is soliciting and, of course, (c) that Trump isn’t soliciting electoral help.
It nonetheless remains unlikely that Barr will revise his opinion on the matter.