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Critics of President Donald Trump say his son’s emails about meeting a Russian lawyer who promised damaging information on Hillary Clinton is a “smoking gun.”
But defenders of the president and Donald Trump Jr. said the meeting, which took place last year as the race between Trump and Clinton was gearing up, amounted to “nothing” and was being overblown by the media.
Among those whose job is to decide which side is right is the Federal Election Commission. The FEC is set to again consider in an open meeting July 13 what can be done to protect U.S. elections from interference by Russia and other foreign powers. The FEC is not expected, however, to directly address the newly revealed Trump meeting or other specific cases.
The commission already had more than a dozen pending cases about foreign influence in last year’s elections when the news broke about Donald Trump Jr.’s meting with the Russian, leading inevitably to even more new enforcement complaints. The commission, however is as deeply divided along partisan lines as is the rest of America and has yet to signal what, if anything, it will do about these matters.
The commissioners agreed earlier this year to expedite handling of enforcement cases dealing with alleged foreign influence, but individual cases are handled in strict secrecy until each case is closed. No new foreign influence cases have been revealed by the FEC so far this year.
As now has been widely reported, Donald Trump Jr. agreed to the meeting with Russian attorney Natalia Veselnitskaya, which also included the president’s son-in-law Jared Kushner and then-campaign manager Paul Manafort. Trump Jr. received an email from an associate who said the meeting would yield “documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” The proposed meeting was described as “part of Russia and its government’s support” for the Trump presidential campaign.
“If it’s what you say I love it,” Trump Jr. responded. He said in comment on Twitter July 11 that the meeting took place but that it provided “no information” and that Veselnitskaya “wanted to talk about adoption policy and the Magnitsky Act.” This referred to U.S. sanctions legislation targeting Russian officials, which led to a suspension of U.S. adoptions of Russian children.
Sorting out the legal implications of this June 2016 encounter has now been added to the tasks of law enforcement agencies examining allegations of foreign interference in the 2016 election. New complaints citing the meeting have been filed by the liberal watchdog group Common Cause with the FEC and with Deputy Attorney General Rod Rosenstein and special counsel Robert Mueller.
Attorney General Jeff Sessions has recused himself from the Trump-Russia matter. Mueller was appointed to head an independent probe after President Trump fired former FBI Director James Comey.
Mueller’s office would appear to have jurisdiction over any criminal violation of campaign finance laws in the Trump-Russia matter, while the FEC would retain civil enforcement authority over the matter. Whether and how the FEC and Mueller might sort out their roles in investigating and deciding whether laws were violated remains to be seen, though each entity has the legal authority to operate independently of the other, experts said.
If Mueller and the FEC come to different conclusions, however, it could complicate the way forward.
For example, the new Common Cause complaint alleges an open-and-shut legal case based on Donald Trump Jr.’s making a prohibited solicitation of “something of value” for the Trump campaign by agreeing to meet Veselnitskaya. The item involved wasn’t cash, however, as in most previous campaign finance cases, but alleged derogatory information about Clinton.
Longstanding campaign finance laws prohibit soliciting or making foreign contributions to influence U.S. elections, and the law clearly states that, in addition to money, another “thing of value” can be a campaign contribution. But, FEC precedents are inconsistent regarding whether information is considered valuable to a campaign and thus always counts as a contribution.
The most recent FEC enforcement case on this issue resulted in a party-line deadlock of the commissioners and dismissal of a complaint against Sen. Claire McCaskill (D-Mo.) The case—designated Matter Under Review (MUR) 6958—arose from McCaskill’s successful 2012 campaign for re-election but wasn’t concluded by the FEC until earlier this year.
McCaskill admitted in a memoir published after the election that she authorized her pollster to have discussions with the campaign of a Republican Senate candidate, former Rep. Todd Akin (R-Mo.) She said she wanted Akin to win the GOP Senate primary because she viewed him as the weakest prospective Republican opponent in the general election. The FEC’s deadlocked vote on the matter resulted in dismissal of a complaint alleging McCaskill’s sharing of helpful campaign information with Akin was an illegal, excessive campaign contribution.
The FEC general counsel’s office concluded in a report that McCaskill and her campaign may have made, and the Akin campaign may have accepted, an illegal contribution. The FEC’s Democratic commissioners backed the counsel’s office recommendation for a full investigation, but the FEC’s Republican commissioners dissented.
A “statement of reasons” filed by the three current Republican FEC commissioners—Lee Goodman, Caroline Hunter and Matthew Petersen—explained their votes on the matter.
“The kind of conversation suggested in McCaskill’s memoir—in which one political consultant provides helpful advice to a staffer from another campaign, or discusses generally the results of a poll—is commonplace in American politics,” the FEC Republicans said. “Regulating these conversations as in-kind contributions under the [Federal Election Campaign] Act would be a striking precedent. The Commission cannot realistically treat all such conversations as in-kind contributions.”
Legal experts have pointed to other examples where campaign information was treated as a valuable commodity. One of the most famous occurred in the 2000 campaign between George W. Bush and Al Gore, when a Bush video and briefing materials regarding an upcoming presidential debate were mailed anonymously to Gore’s campaign.
The Gore campaign immediately handed over the material to the FBI, regarding it apparently as stolen property from its rival. A criminal investigation commenced, and an aide to Bush’s campaign media firm later was convicted and sentenced to a year in jail for mail fraud and perjury but not campaign finance charges.
Another FEC case cited recently by election law expert Richard Hasen also weighed in favor of viewing a Russian offer of derogatory information on Clinton to the Trump campaign as a valuable campaign contribution. Hasen, a law professor at the University of California Irvine cited the case (MUR 5409) on his Election Law Blog.
In the matter, which dates to 2004, the FEC commissioners voted 5-1 to accept an FEC general counsel’s finding that the nonprofit Americans for Tax Reform, headed by conservative activist Grover Norquist provided a “thing of value” to the 2004 George W. Bush re-election campaign in the form of a list of conservative activists in 37 states.
Some of the information may have been publicly available when Norquist gave it to the campaign, but the FEC found this was a prohibited corporate contribution and that the Bush campaign violated the law by failing to report it. The FEC also found, however, that the list had so little value that the matter should be dismissed.
Another expert, prominent Democratic attorney Robert Bauer, has argued in a series of articles posted on his blog that potential campaign finance violations in Trump’s dealings with Russia have been “more or less hiding in plain sight.”
Bauer, who served as President Barack Obama’s White House counsel and campaign lawyer, said in one article that Russia’s reported hacking and dissemination of emails belonging to the Democratic Party and Clinton campaign manager John Podesta “clearly had value” to Trump’s campaign and noted that Trump himself publicly encouraged Russia to hack even more emails related to Clinton.
Trump famously declared in a news conference during last year’s campaign: “I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30,000 [Clinton] emails that are missing.”
Trump aides later said their candidate was joking when he made the statement.
Whether the FEC or Mueller’s office will be able to resolve such questions remains to be seen, but an indication of whether the FEC commissioners can muster some level of bipartisan cooperation on the issue may be revealed at their July 13 meeting. If the past is a guide, the FEC is likely to again be gridlocked, with Democratic Commissioner Ellen Weintraub pushing for forceful statements and initiatives and the FEC Republicans raising concerns and objections.
FEC Chairman Steven Walther, who holds a Democratic seat on the commission, has pushed for the agency to resolve pending enforcement matters but also has expressed doubts about the ability of the FEC, a comparatively tiny federal agency, to take the lead in responding to the reported Russian cyberattack on the U.S. political system.
Weintraub has noted the novel challenges posed by Russian interference in the 2016 elections and called for new measures to deal with them.
“Typically when we address foreign money in our elections, it is regarding contributions made directly by foreign nationals or made indirectly through corporations or other entities,” Weintraub said in a memo set for discussion at the upcoming FEC meeting. “What’s being reported here is different.”
She cited news reports of propaganda efforts like Russian-financed Facebook ads, which sought to influence the 2016 campaign, as well as reported Russian efforts to hack into state election databases.
“We and our staff need to know what happened, what is happening now and what may happen next,” Weintraub said, suggesting the FEC should cooperate more closely with other agencies involved in investigating Russia’s election interference.
In the past, however, FEC Republicans and critics outside the agency have push back hard against initiatives to expand the FEC’s role, suggesting they could backfire and chill the First Amendment rights of Americans to participate in the political process.
To contact the reporter on this story: Kenneth P. Doyle in Washington at email@example.com
To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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