Who Were the Russians Working For?

If any of the Russians who met with Donald Trump Jr are convicted, it will make a difference if they were working for the Kremlin.

July 24, 2017
Trump Tower Russians

Whenever he appears before the Senate Judiciary Committee, there are sure to be lots of questions for Donald Trump Jr. about his meeting with three Russians. At least as young Trump tells it, he was lured into conferring with the Russians last June because he was told he would be furnished damaging information about Hillary Clinton. But it turned out the Russians had little to offer him – or Paul Manafort, Donald Trump’s campaign manager, or Jared Kushner, Donald Trump’s son-in-law – when they all gathered in Trump Jr.’s 25th floor office in Trump Tower. What his guests actually wanted to discuss, according to Trump Jr., was repeal of an American law that blacklists certain Russians. He has denied any wrongdoing.

But the legal consequences of the meeting may be very different if Special Counsel Robert Mueller can prove Trump Jr.’s guests were actually working for the Kremlin. There’s some confusion on that point these days because not everyone pores over campaign finance law.

Federal law (52 U.S.C. §30121 formerly 2 U.S.C. § 441e) bans candidates (and everyone else) from soliciting political contributions from foreigners. What’s lesser known is that the law actually does distinguish between foreign nationals and foreign governments; not in the statute, but rather in the federal sentencing guidelines.

The law banning foreign interference in elections has been around since 1966 when the prohibition became part of the Foreign Agents Registration Act (FARA). The reform was spearheaded by Senate Foreign Relations Committee Chairman J. William Fulbright, who held hearings about overseas interests funding U.S. elections. Columbia Law School Prof. Lori Fisler Damrosch writes that there was special about concern about money flowing from foreign governments:

[The Fulbright] [h]earings … vividly document the efforts of certain foreign interests to ensure the reelection of sympathetic legislators by channeling campaign contributions through lawyers or other agents in Washington … Although some of the activities covered by the hearings involved foreign businesses rather than governments, a key issue was the extent to which foreign governments had attempted to influence U.S. policy through techniques outside normal diplomatic channels.

The foreign ban has been amended and moved in the U.S. Code over the years. Its most recent amendment was in 2002 in the Bipartisan Campaign Reform Act (also known as McCain-Feingold or BCRA). McCain-Feingold enhanced the criminal penalties for many aspects of federal campaign finance law. And the law as a whole was upheld against a facial challenge by the Supreme Court in 2003 in McConnell v. FEC.

When the Supreme Court decided that as-applied challenges could also be raised against McCain-Feingold, it began picking the law apart in cases such as Citizens United. That 2010 ruling invalidated a ban on corporations’ spending independently in federal elections.  But Citizens United left the foreign ban intact.

Two years after Citizens United, in Bluman v. FEC, the Supreme Court specifically addressed the foreign ban by summarily affirming a lower court that upheld it. The lower court in Bluman reasoned that it was constitutional to ban foreigners, even the nice Canadian who was lead plaintiff in the case, from spending money in U.S. elections. So according to the last word from the Supreme Court, 52 U.S.C. §30121 is still good law.

As I explain in a forthcoming law review article, Dark Money as a Political Sovereignty Problem, the federal sentencing guidelines already make a distinction between  mere foreign nationals and members of foreign governments. The article states, “[t]he federal sentencing guidelines were amended to reflect the new strictures of BCRA including sentencing enhancements for foreign money in American elections especially if the source was a foreign government.” 

In the first post-McCain Feingold sentencing guidelines, in 2003, penalties listed at §2C1.8(b)(2) were enhanced if the campaign finance offense involved a foreign national (two levels) or a foreign government (four levels).  Thus there is more prison time for a person working for a foreign government than one who is simply a run-of-the-mill foreign national like Bluman.

And if you’re wondering how the law defines a “government of a foreign country,” the sentencing guidelines use FARA’s definition.  The term “government of a foreign country” includes “any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and includes any subdivision of any such group and any group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated.”

So it actually makes a difference whether the Russian lawyer, or the Russian-American former KGB agent, or the Soviet-born financier once suspected of money laundering, or the former British tabloid reporter who now promotes a Russian pop star or even the U.S.-born translator, or anyone else who managed to fit in Donald Jr.’s office that day along with Manafort and Kushner were working for the Russian government. If any of the lot was working for the Kremlin and they’re convicted of violating the foreign contributions ban, they’ll face a stiffer sentence.