Unenforced Campaign Laws Will Be Broken Again

By saying publicly that he would accept information from foreign governments, Trump is openly inviting foreign governments to interfere with the 2020 election.

June 14, 2019

In an interview with George Stephanopoulos last week, President Trump suggested that, if offered in the future, he would accept opposition research from a foreign government. He also said that FBI Director Christopher Wray “was wrong” to say that political campaigns that receive such overtures from foreign actors should alert the FBI.

Trump’s speech and behavior are not shocking, and are consistent with how his 2016 campaign team entertained foreign assistance.

Several legal commentators, including myself, have argued that a June 2016 meeting in Trump Tower violated a longstanding prohibition on campaigns accepting help from foreign actors in U.S. elections. During that now infamous meeting, Donald Trump Jr., Jared Kushner, and Paul Manafort met with Russian lobbyists who promised damaging information on Hillary Clinton.

Former Special Counsel Robert Mueller decided not to charge Donald Trump Jr. (or, for that matter, anyone else) with violating campaign finance laws, arguing that the courts had not clearly concluded that the offer of opposition research was a “thing of value.”

The former special counsel was just following the Supreme Court’s lead. In 2016, the Supreme Court overturned the prosecution of former Virginia governor Bob McDonnell, making it more difficult to prosecute elected officials for corruption. That decision, paired with the Court’s 2010 Citizens United ruling, has made campaign-finance prosecutions more difficult. These rulings are part of the reason the corruption case against Sen. Bob Menendez (D–NJ) fell apart in 2018.

It may also explain why Mueller gave Don Jr. a pass on the potential campaign finance crimes. Charging the eldest Trump son with a crime could have resulted in a Supreme Court ruling overturning the ban on foreign campaign contributions.

But in declining to go after Don Jr., the former special counsel emboldened everyone in Trump’s 2020 campaign (which started the day Trump was inaugurated) to ignore the ban on foreign contributions to U.S. campaigns. As indicated by his recent statements, Trump, like his son, sees no problem with receiving dirt on his opponents from foreign governments.

During his interview with Stephanopoulos, Trump hypothesized that Norway, traditionally a U.S. ally, was offering information about an opponent. However, such information is much more likely to come from less friendly countries such as China, North Korea, or Russia (again) who are seeking to undermine U.S. interests by meddling in our elections. Regardless, under U.S. campaign finance law,  all foreign sources of information or funding are prohibited.

But by saying publicly that he would accept information from foreign governments, Trump is openly inviting foreign governments to interfere with the 2020 election. It’s no different from his comments in 2016, when he publicly encouraged Russia to find Hillary Clinton’s missing emails.

The fact that Trump makes these statements in public is just as dangerous as if he had whispered them to Putin a meeting and then destroyed his translator’s notes. (That actually happened.)

Trump likely feels doubly emboldened by outcome of the Mueller investigation. He is surely relieved that his eldest son was not indicted and delighted that Mueller and Attorney General William Barr are standing by the Justice Department’s policy that a sitting president cannot be indicted. As long as he is in office, he’s off the hook for any campaign finance crimes he committed in 2016. Moreover, House Democrats have yet to open an impeachment inquiry despite copious evidence of obstruction of justice in the Mueller Report as well as in Michael Cohen’s testimony.

But the president may not fully appreciate a few things. First, it will be much more difficult for the Trump campaign to feign ignorance about campaign finance rules in 2020 than in 2016. And second, there is a five-year statute of limitations for campaign finance violations. Trump or his campaign may break the law again in 2020, and he may win re-election. But come January 2025, when he is no longer in office, prosecutors will still have a year to throw the book at him.

Ciara Torres-Spelliscy is the author of the forthcoming book, Political Brands.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

(Image: Scott Olson/Getty)