Editor’s Note: Larry Noble is the former general counsel of the Federal Election Commission (1987-2000). He is a CNN contributor and has served as general counsel of the Campaign Legal Center and executive director of the Center for Responsive Politics. Follow him on Twitter @LarryNoble_DC. The opinions expressed in this commentary are solely those of the author; view more opinion at CNN.
President Donald Trump has exceeded expectations when it comes to ignoring the norms and laws of acting “presidential.” He tells and repeats obvious lies, uses his office to promote his businesses, attacks the press for reporting the truth and rejects congressional oversight and attempts to obstruct lawful investigations.
Some of these actions are gross violations of past norms and democratic values, while others potentially violate the law. Still, much of the damage he is doing can be repaired.
What may be more dangerous is that Trump is trying to normalize the act of soliciting or accepting foreign election interference, even from our adversaries. What started as Donald Trump Jr., Jared Kushner and Paul Manafort secretly attending a June 2016 meeting with Russian agents in hopes of receiving what the Russians claimed was damaging information about Hillary Clinton has now escalated to President Trump publicly urging Ukraine and China to investigate a Democratic candidate he may run against in 2020.
If foreign actors successfully influence our elections at the behest of our own President, the damage to our democratic infrastructure and national sovereignty may be irreparable.
America first?
Just one day after ex-special counsel Robert Mueller testified before Congress about his investigation into Russian interference In the 2016 election, President Trump talked to Ukrainian President Volodymyr Zelensky on the phone.
According to the White House’s rough transcript of the July 25 call, Trump asked Zelensky “to do us a favor” and “get to the bottom” of a debunked conspiracy theory that Ukraine hacked the DNC email server during the 2016 elections and then framed Russia. Later in that same phone call, Trump urged Zelensky to launch an investigation into former Vice President Joe Biden, who in December of 2015 called for the ouster of a Ukrainian prosecutor who had investigated a gas company with which his son Hunter Biden had a role on the board. There is no evidence of wrongdoing by either Joe or Hunter Biden.
Seeking foreign interference in our elections is obviously at odds with Trump’s public embrace of “America First” policies. But hypocrisy is not illegal. Trump’s appeals to foreign powers, though, could represent a serious violation of the Federal Election Campaign Act (FECA), which prohibits anyone from soliciting or accepting anything of value from a foreign government to influence an election. The principle behind this law is fundamental to democratic self-governance.
In the 1976 case Buckley v. Valeo, the Supreme Court said the primary purpose of the campaign finance law is to “limit the actuality and appearance of corruption” that can arise from the potential influence that accompanies political contributions. This is the basis for federal restrictions on (and in some cases prohibitions against) political contributions by individuals, corporations or labor unions.
The danger to democracy posed by such corruption is magnified when the influence over the US political process comes from foreign nationals. As then-US District Judge Brett Kavanaugh recognized in Bluman v. FEC, a 2011 opinion affirmed by the Supreme Court, there is a “compelling interest” for “limiting the participation of foreign citizens in activities of American democratic self-government.” It is “part of the sovereign’s obligation to preserve the basic conception of a political community,” Kavanaugh wrote.
That’s why it is illegal for foreign nationals to make contributions to influence US elections and for anyone “to solicit (or) accept” a political contribution from a foreign national. The FEC defines “to solicit” as “to ask, request, or recommend, explicitly or implicitly, that another person make a contribution … or otherwise provide anything of value.” If the value of the contribution is $25,000 or more, it is a felony.
“Anything of value,” is a key part of this definition, and can include opposition research on your opponent. In his “Report On The Investigation Into Russian Interference In The 2016 Presidential Election,” special counsel Mueller recognized that “(a) foreign entity that engaged in (opposition) research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.”
What’s the value of foreign assistance?
By asking Zelensky to open an investigation into one of Trump’s leading 2020 rivals, the President was soliciting something of value to help him get reelected.
Nevertheless, it has been reported that the Justice Department, headed by Attorney General William Barr, reviewed the whistleblower complaint and decided not to investigate possible campaign finance law violations. Apparently, the Justice Department decided that “help with a government investigation could not be quantified as ‘a thing of value’ under the law,” according to Washington Post reporting.
This would be the second time federal prosecutors have decided not to prosecute anyone associated with the Trump campaign for illegally soliciting a contribution from a foreign government in the form of derogatory information on a political opponent because they were unable to determine the value of what was being solicited.
The first time was when special counsel Mueller declined to prosecute Trump Jr., Kushner and Manafort for soliciting or receiving a foreign contribution when they attended the 2016 meeting with Russian agents offering dirt on Clinton. According to the Mueller report, one of the reasons the special counsel’s office decided not to prosecute was the “the difficulty of establishing the value of the offered information.” Nevertheless, Mueller made clear that “candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute” a prohibited foreign contribution.
While the Justice Department seems to have difficulty appraising the value of in-kind help from a foreign government, US law and FEC regulations deal with the issue clearly. For example, the federal definition of a campaign contribution includes “the payment … of compensation for the personal services of another person … without charge to a political committee for any purpose,” excluding legal and accounting services.
FEC regulations provide that “anything of value includes all in-kind contributions,” such as “the provision of any goods or services without charge or at … less than the usual and normal charge.” This category includes “facilities, equipment, supplies, personnel.” The usual and normal charge for any services is defined as “the hourly or piecework charge for the services at a commercially reasonable rate prevailing at the time the services were rendered.”
The valuation question regularly arises when corporations not in the business of renting their facilities or staffing events allow their facilities, staff or services to be used for campaign activity. To avoid making a prohibited contribution, the corporation must comply with detailed FEC regulations. For example, with certain exceptions, if a corporation allows its facilities to be used for campaign activity, the campaign must reimburse that corporation for the normal and usual rental charge within a commercially reasonable time.
As Mueller noted in his report, there are several ways you can determine the value of services provided by a foreign government, including by noting the normal charge for opposition research, or considering what it had cost to gather and provide the information at issue.
Nevertheless, Mueller concluded that such information “would likely be unavailable or ineffective in this factual setting,” by which he means the June 2016 meeting in Trump Tower. According to Mueller, even after his investigation, it was not clear exactly what information the Russians were offering the Trump campaign, what the Trump campaign thought it was getting, how the Russians obtained the information or whether the information was obtained for the purpose of helping the campaign.
Coming up with the numbers
I disagreed with Mueller’s decision not to charge the Trump campaign with a crime. Nevertheless, most of the problems Mueller identified in the June 2016 “factual setting” do not exist when assessing the value of a Ukrainian or Chinese investigation of Trump’s political opponent. It’s a different scenario from the 2016 Trump Tower meeting. Here, Trump is not responding to a vague offer of some negative information about his opponent. Rather, he’s using the authority of his office to persuade the Ukrainian and Chinese governments to open official corruption investigations into Joe Biden and his son.
In fact, it’s not even clear whether the Justice Department made any effort to put a value on a Ukrainian corruption investigation into Trump’s opponent. If the department were interested in determining whether Trump has committed a felony, all the Justice Department needs to determine is whether the value of what Trump sought from Ukraine amounted to more than $25,000.
While there are several ways to go about an estimation, the most direct approach would be to ask the Ukrainian government how much a corruption investigation of this scale would cost. The Ukrainian government must have records of what it pays the staff in the prosecutor’s office and is likely to have experience budgeting for investigations.
The Mueller investigation cost an estimated $32 million. Even if a Ukrainian or Chinese investigation cost just one-tenth of 1% of the Mueller investigation, it would exceed the $25,000 threshold for a felony.
Relying on the perceived difficulty of determining the exact value of the foreign help Trump is seeking is no longer an option for those charged with enforcing the law. Even though the Mueller report cautioned that soliciting opposition research by a foreign government could be illegal, Trump saw only green lights. To the surprise of many, he publicly refused to foreclose the option of listening to a foreign government offering to provide information to his 2020 campaign before alerting the FBI.
We now know why.
Soon after the Mueller report was publicly released, Trump crossed the line from being receptive to offers of foreign help to pressuring the President of Ukraine to launch an investigation that could help Trump’s reelection campaign. And now the US President has publicly added China to the list of countries he is inviting to support his reelection.
The Washington Post is now reporting that Trump sent Attorney General Barr overseas to meet with foreign intelligence officers from other countries to seek their help to discredit the conclusion of US intelligence agencies that Russia interfered in the 2016 election.
It is foolish and dangerous to assume that Trump will not keep escalating his efforts to enlist foreign governments to help him win reelection. Trump has never worried about pushing the envelope when his self-interest is involved. Since he launched his campaign in 2015, his words and actions have reflected his belief that he is above the law. And now Trump has an attorney general who apparently sees himself as the President’s protector.
An uncertain future
It appears Trump may have tied his solicitation of Ukraine to foreign aid. Now he is urging China to begin an investigation into Joe Biden while the two countries are engaged in trade negotiations.
What kind of help might countries likeChina, Russia, North Korea and Saudi Arabia, whose leaders are hostile to democratic governments, be willing to offer to assure Trump’s reelection? What influence wouldthat help buy them with Trump? And what damage is being done to our relationships with allies who respect democratic values along with the rule of law if they are being asked to assist in the President’s efforts to discredit his political opponents?
There are other laws that are relevant to Trump’s interactions with Ukraine. But we cannot lose focus on the importance of enforcing FECA’s broad ban on anyone seeking or accepting foreign contributions to assist their election chances. As Judge Kavanaugh wrote in his 2011 Bluman decision:
“Such measures have been a part of US campaign finance law for many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers, whose obsession with foreign influence derived from a fear that foreign powers and individuals had no basic investment in the well-being of the country.”