Federal Prosecutions for Alleged Don Jr. Offense Nearly Non-Existent
Pundits push theory Russian gave Trump campaign ‘thing of value,’ legal expert blasts 'ridiculous assertion'
If a trio of President Donald Trump’s campaign advisers ends up facing campaign finance charges for meeting with a Russian lawyer last summer, it will be close to unprecedented, according to a review of federal court records.
The political world has been in an uproar since The New York Times reported July 8 that the president’s son, Donald Trump Jr.; son-in-law Jared Kushner; and campaign manager Paul Manafort met with a Russian lawyer in June 2016 in hopes of obtaining dirt on Democratic nominee Hillary Clinton.
Some commentators have seized on the meeting as the long-awaited “smoking gun” proving collusion between Trump and Russia to sway the election. But identifying an actual crime has proved elusive. Some legal scholars have zeroed in on campaign finance law, specifically 52 U.S. § 30121, which prohibits campaign contributions by foreigners.
Importantly, the law covers not just money but also "any other thing of value." And it bars anyone from soliciting, accepting or receiving such a contribution.
Lawyers have debated whether merely attending a meeting constitutes "solicitation" or whether unspecified information meets the definition of a "thing of value" under the statute. Lost in the debate has been an examination of whether federal prosecutors have tried to make the argument in court.
At the request of LifeZette, the Administrative Office of the U.S. Courts researched federal cases over the past 10 years and could not find an instance in which anyone has been prosecuted for soliciting a thing of value from a foreigner. In fact, while the office found 31 prosecutions related to campaigns, none was under 52 U.S. § 30121.
"This one certainly is not all that common, it seems," said Jackie Koszczuk, a spokeswoman for the agency.
Of course, just because prosectors have not brought charges under a certain statute in recent history does not preclude them from doing so in the future. But a pair of former Federal Election Commission (FEC) members told LifeZette that making a case against Trump Jr., Kushner and Manafort based on what is publicly known would be a stretch at best.
"That is a ridiculous assertion," said Hans von Spakovsky, who now serves as manager of the Election Law Reform Initiative at The Heritage Foundation.
Information passed on to a campaign about a rival candidate is not a "thing of value" under the law, said von Spakovsky, who also serves on the president's election integrity commission. He added that solicitation demands more than a mere conversation.
"That would mean that no candidate could ever have any conversation with anyone about anything," he said. "It would lead to absolutely absurd results."
The courts have grappled with how to define a "thing of value" in other contexts. Appellate courts have split, for instance, over whether a company promise to remain neutral during a union-organizing campaign violates a law prohibiting unions from demanding or receiving a thing of value from an employer. The Supreme Court had agreed to resolve the question in 2013 but later determined that the decision to hear the case had been "improvidently granted."
"Having a conversation with a foreigner is not a violation of law. Anyone who says otherwise is just being partisan."
In the realm of campaign finance law, von Spakovsky aruged, "thing of value" applies to "in-kind" services provided to a campaigns in lieu of cash contributions. Examples might include office space, yard signs, or polling services — tangible items for which campaigns normally would pay money.
Beyond whether a potential tip is a "thing of value," von Spakovsky also suggested that prosecutors in a potential case would have trouble proving that Trump and the others solicited it merely by attending the meeting.
"Having a conversation with a foreigner is not a violation of law," he said. "Anyone who says otherwise is just being partisan."
Brad Smith, a Capital Law School professor in Ohio who served on the Federal Election Commission for five years last decade, said producing a detailed report as an opposition research firm would might be considered a "thing of value" if it were something for which the campaign otherwise would pay. But he said it is questionable whether the information discussed at the June 2016 meeting would qualify.
"If someone just passes on information … I'm not sure that gets you anywhere," he said. "I think there's very serious doubt that he [Trump Jr.] was soliciting a campaign contribution."
Legally, Donations From Russia or France Are the Same
The president's critics have focused on how emails Trump Jr. released indicate that he believed the lawyer he would be meeting with, Natalia Veselnitskaya, was a Russian government attorney. As a matter of law, Smith said, that is irrelevant. The law prohibits contributions from any foreign national, whether connected to a government or not.
The fact that Veselnitskaya is Russian has kicked speculation into overdrive given suggestions that the Trump campaign may have conspired with agents of that nation's government to hack into computers systems of Democratic officials. But Smith said the law also makes no distinction about whether a foreigner comes from a friendly or unfriendly nation. Had the meeting been with a lawyer from France, it likely would be viewed much less explosively. But it is no more legal for a Frenchman to donate to an American campaign than for a Russian. (go to page 2 to continue reading)