By Bob Bauer
The Trump campaign in 2016 was signaling to Russia that it would be happy to have the Putin regime’s help. President Trump, as a candidate, famously called for Russia’s assistance. Later, when pressed, he repeatedly refused to clearly acknowledge its interference or condemn it.
Now it appears that Trump campaign was not simply hinting that it would welcome this help. The Wall Street Journal very recently, and now the New York Times, have reported active Trump campaign or campaign supporter contacts with Russian agents or intermediaries toward the goal of obtaining negative information about Hillary Clinton. And, for the first time, someone named Trump–Donald, Jr.–has publicly confirmed that the campaign communicated directly with a Russia foreign national connected with the Putin regime in the bid for material damaging to the former Secretary of State.
In previous pieces, I have discussed the ground of legal liability based on “substantial assistance” to, or “aiding and abetting,” a foreign national’s providing a “thing of value” to influence an election. To this date the evidence has been largely on the public record, in “plain sight,” and it included Mr. Trump’s own comments. The recently published reports do not replace this theory; they supplement it, or round it out, by corroborating that what the campaign was pursuing through private channels were the same goals–help from the Russians—that were strongly indicated by the candidate’s words and related public behavior.
Of course, it should go without saying that we will have a reliable grasp on the evidence only when the facts are developed and tested through the legal system. There are a host of questions still to be answered about the reported Trump campaign contacts. But the most recent press accounts are especially significant because they include specific statements on the record conceding the Trump campaign’s expressed interest in what the Russians could provide. Those statements show intent–a clear-cut willingness to have Russian support–and they reveal specific actions undertaken to obtain it.
The Wall Street Journal reported on the activities of a Trump campaign supporter, Peter W. Smith, who assembled a group dedicated to locating the emails that Mrs. Clinton treated, and deleted, as personal. They put out the word that they were interested in what hackers could find; and, Mr. Smith confirmed, that they “knew that people who had them were probably around the Russian government.” The Journal reports that Mr. Smith and another in his group promoted a connection to former Lieutenant General Mike Flynn, a key campaign surrogate.
Was Flynn in fact participating in the Smith group search for the emails from foreign sources? Smith took the position with the Journal that while he knew General Flynn, Flynn was not formally involved with this quest for the stolen emails. Several other campaign associates denied on the record their own connection to Smith, and Flynn declined to answer that question.
The Trump campaign has not, however, denied his involvement, A Trump campaign official has said only that “if Flynn coordinated with [Smith] in any way, it would have been in his capacity as a private individual.” Smith and one of his associates apparently indicated to others the belief that Flynn was a representative for the campaign– that to supply any stolen emails to Flynn accomplished the purpose of providing them to the campaign itself. Communications among hackers, picked by US intelligence, suggested that they also believed that Flynn was the gateway to the campaign, accessible through an “intermediary.” Whether they understood Peter W. Smith to be that intermediary has not yet been established in the reporting to date. .
Now the Times has reported direct communications between the Trump campaign’s inner circle and a Russian national connected to the Kremlin. A Russian lawyer with ties to state owned enterprises and to a senior government official met with Trump campaign officials shortly in June of 2016, shortly after the nomination was decided. Donald Trump, Jr., the campaign manager Paul Manafort and the President’s son-in-law, Jared Kushner all attended the meeting. With Manafort’s presence in particular the connection to the campaign is clear.
The significance of this extraordinary meeting, now confirmed by Donald Trump, Jr. lies in the reason why the campaign agreed to it. According to a statement from Donald Jr., there was on the campaign’s part an “expectation” that the Russians would have negative information to offer about Hillary Clinton. The result, so Trump Jr. now claims, was disappointing: “It quickly became clear that she [the Russia lawyer] had no meaningful information.” He now dismisses her claim to have had this material as mere “pretext” for the meeting. The President’s son is admitting that the campaign arranged the meeting solely to get this information.
Trump Jr. suggests that he did not know of the Russian connection: he did not know the identity of the individual offering the information, including the fact that she was a foreign national. And he would have it believed that when he invited Kushner and Manafort to join the meeting, he did not tell them, because he did not know, that the lawyer was a Russian–or who she was. And, apparently, when she came in and introduced herself, the Trump campaign team was still uninformed about her identity and did not ask about it. Suffice it to say that this is a strange account and investigators will probe it deeply. And if there is any truth to it, it is not clear how much it helps Trump Jr. and his colleagues: one explanation for their ignorance of whom they were dealing with is “willful blindness,” which is not helpful to their legal position.
Campaign Finance Law Implications
This new and remarkable information adds considerably to the potential criminal violation of the federal law that prohibits “substantial assistance” to foreign nationals seeking to influence a federal election. Now we have, as part of the public record, specific and private actions to establish intent to provide this assistance. Donald Trump can’t very well sustain his position that in calling for the Russians to find the missing email, he was merely joking. His campaign was furthering behind closed doors the objective that the candidate was “jokingly” professing. If confirmed and further developed in the Mueller investigation, these facts also bolster the campaign’s exposure to “aiding and abetting” liability for a campaign finance violation.
There are two additional grounds for that criminal liability: the campaign’s “coordination” with Russian foreign national sources, as a result of which it received an illegal contribution, and its “solicitation” of this illegal contribution, each of which independently violate the law.
A charge of illegal coordination is consistent with a conspiracy, aiding or abetting, or “substantial assistance” source of liability. It is the campaign finance law equivalent to what has been referred to in the public debate as “collusion.” In other words coordination is a legally prohibited form of collusion: spending by Russia, if coordinated with the campaign, is a contribution to the campaign. The contribution, of course, would be illegal. It is important to underscore here that this area of law applies to any and all coordinated spending beneficial to the campaign, not only to coordination with Russians, the Russian government, or other foreign nationals (think: Wikileaks).
Under the campaign finance laws, spending of all kinds to influence an election can be subject to a finding of coordination resulting in an illegal contribution. 52 U.S.C. §30116(a)(7)(B)(i); 11 C.F.R. §109.20. The coordination rules are designed to enforce contribution limits, by treating as a contribution an expenditure from any source “in cooperation, consultation, or concert, with, or at the request or suggestion of” a candidate or agent of the candidate. If R is the organization spending the money, and T is the candidate who is coordinating the spending with R, then T has received a contribution from R. The contribution must comply, like all other contributions, with source restrictions, dollar limits, and public reporting. (And under no circumstance may a candidate coordinate campaign spending, which includes any “thing of value” to influence an election, with a foreign national.)
There are special coordination rules that apply to expenditures for public communications, such as a group’s spending coordinated with a candidate for television campaign advertising. 11 C.F.R. §109.21. There are also general coordination rules, which simply treat as a contribution any spending made “in cooperation, consultation or concert with, or at the request or suggestion of” a candidate.
A question clearly raised by the new information is whether the Trump campaign’s communications about the hacked emails–through both public statements and private contacts–constituted in effect, for legal purposes, a request or suggestion that funds be spent to acquire the stolen emails. The candidate certainly requested this assistance in his public remarks. Now, in a meeting scheduled with a Russian national with ties to the Putin regime, the campaign made clear that it was actively interested in having this kind of information.
Investigators will presumably explore whether the campaign was interested specifically in the stolen emails. Press reporting suggests that a) the campaign was interested in the emails, because the candidate had said so, and supporters like Mr. Smith was engaged in a concerted effort to find them; and b) both the campaign and Mr. Smith were dealing with Russian nationals in the search for negative information on Mrs. Clinton. At any rate, any support coordinated with the Russians constitutes an illegal contribution from a foreign source.
It is critical to bear in mind that for campaign finance law purposes, a “suggestion” is just that: it need not for coordination purposes be a clearly articulated and documented request. In fact, the regulations of the FEC define a “suggestion” to include campaign “assent” to the offer of another, like the Russian government or its agents, to provide something of value to the campaign.
Consider, then, the view that Russians could reasonably take of the Trump campaign’s wishes. The President stated publicly that he would like to have the Russians locate the stolen emails. Mr. Smith, indicating in various ways association with General Flynn, launches an initiative focused on finding these communications. A Russian national with government connections is able to schedule a meeting with the most senior circle of the campaign by pledging that she had negative information about Mrs. Clinton. In various ways, public and private, the campaign is making its interest clear, and, at a minimum, it is “assenting” to Russian plans to unearth information that constitutes a clear “thing of value” from a foreign source to influence an election.
Soliciting the “Thing of Value”
To coordinate spending is to receive a contribution. It is also illegal to solicit a contribution or expenditure–any “thing of value”–from a foreign national. 52 U.S.C. 30121(a)(2); 11 C.F.R. § 110.20 (g). A solicitation also need not be express: it can be implied. It is useful to consider the regulatory definition of “solicitation” adopted by the Federal Election Commission. I have put in italics key portions:
To solicit means to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value. A solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value. A solicitation may be made directly or indirectly. The context includes the conduct of persons involved in the communication.
11 C.F.R. §300.2(m).
In sum a solicitation may be implied as well as express, and it is determined by examining all the relevant circumstances, including the context in which the communication in question is made. The President made an express appeal in public comments for Russian help, and the potential for finding an illegal contribution is reinforced by his repeated refusals to acknowledge or denounce the Russians for what the intelligence community formally found to be their program of interfering in the election. The freshly reported communications with Russian nationals add weight to the question of whether he and his campaign were really “soliciting” or just “joking.”
The Russians could reasonably understand that the campaign was very much in the market for this information. By suggesting that she had such information, a Russian national with a relationship to her government could obtain an audience with intimate associates of the candidate: his campaign manager, his son and his son-in-law. It would have been hard for the Russians to mistake the intensity of the campaign’s interest. The very scheduling of the meeting–and the status of the attendees–was sufficient to get the campaign’s point across about what it highly valued and was prepared to take from a foreign source. And if they had any doubt, it would have been resolved by the President’s public call, a little six weeks later, for the Russians, “if you’re listening,” to find the emails.
It also bears emphasis that a solicitation need not be successful in order to be illegal. The law applied here is not about an attempt, inchoate or otherwise, to commit a federal offence—the very solicitation is itself a potential crime.
Mr. Trump, His Campaign and the Foreign National Spending Ban
There is much more to know in evaluating the case that Mr. Trump and his campaign committed campaign finance violations in soliciting and receiving support from Russia, and assisting the Russians in their plan to influence the 2016 presidential election. There is now little doubt that there is such a case. Its precise nature, and the full range and strength of the evidence available to support it, remain to be determined. For example, we do not know the role that Mr. Flynn played in the Smith Group hunt for stolen emails. We have only what Donald Trump Jr. has admitted about the substance of the June meeting with the Russian lawyer offering negative information on Mrs. Clinton.
What is becoming increasingly clear is that Mr. Trump and his campaign were open to whatever help the Russians would provide: they made that clear to the Russians, and took specific actions to invite and receive this foreign national assistance. In response to the latest disclosure of Russian contacts, the campaign’s defense seems to be that it never checked whether the people from whom they were soliciting stolen emails and other negative information were Russians, much less connected to the Kremlin. That may beggar belief; some may even find the claim perversely amusing. But under campaign finance law, it is no joke.
[Editor’s note: For more analysis by Bob Bauer of developments in the case of the Trump campaign and Russian involvement in the 2016 presidential election, read Part I, Part II and Part III of his recent series.]