The whistleblower complaint against President Trump
alleges acts very similar to those examined by the Mueller Report which occurred
during the June 9, 2016, meeting in Trump Tower between the Russian attorney Natalia
Veselnitskaya, Donald Trump, Jr., and several other participants. In both episodes there was the possibility of
a foreign government giving Trump opposition research information relevant to his
campaign opponent.
The Mueller Report examined the June 9, 2016, meeting
in great detail. Its conclusion was that
there was no violation of campaign finance laws. The same conclusion should apply to Trump’s phone
call with Ukrainian President Zelensky.
The Report said:
Accordingly,
taking into account the high burden to establish a culpable mental state in a
campaign-finance prosecution and the difficulty in establishing the required
valuation, the Office decided not to pursue criminal campaign-finance charges
against Trump Jr. or other campaign officials for the events culminating in the
June 9 meeting.
In particular, on the question of whether
opposition research provided by a foreign government constituted a
thing-of-value, the Muller Report said:
… no judicial decision has treated the voluntary provision of
uncompensated opposition research or similar information as a thing of value
that could amount to a contribution under campaign-finance law. Such an
interpretation could have implications beyond the foreign-source ban, see 52
U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise
First Amendment questions. Those questions could be especially difficult where
the information consisted simply of the recounting of historically accurate
facts. It is uncertain how courts would resolve those issues.
The Democrats working
on impeachment refuse to mention the Mueller Report, although it is clearly
relevant to their investigations. Since
the factual situations are so similar it is important to review the Mueller
Report’s extensive analysis of the June 9, 2016, meeting between Trump Jr. and
Veselnitskaya. The Democrats would no
doubt argue that they are different because Trump threatened to withhold aid
from Ukraine, but in fact, Trump asked Zelensky to do him a “favor.” A favor is not something you pay for. It is something done at the other party’s
discretion, and need not be done at all.
Zelensky did not do anything in response to Trump’s request, and Trump
did not withhold the aid. In that sense
it was like the June 9 meeting in that nothing happened with regard to
providing opposition research.
Because it is so
relevant, following is the complete text from the Mueller Report of its legal
analysis of the June 9 meeting.
Begin quote:
3. Campaign Finance
Several areas of the Office's investigation involved efforts or offers
by foreign nationals to provide negative information about candidate Clinton to
the Trump Campaign or to distribute that information to the public, to the
anticipated benefit of the Campaign. As explained below, the Office considered whether
two of those efforts in particular- the June 9, 2016 meeting at Trump
Tower Harm to Ongoing Matter ---:-constituted prosecutable violations of the
campaign-finance laws. The Office determined that the evidence was not
sufficient to charge either incident as a criminal violation.
a. Overview Of
Governing Law
"[T]he United States has a compelling interest... in limiting the
participation of foreign citizens in activities of
democratic self-government, and
in thereby preventing foreign influence over the U.S. political process." Bluman v.
FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (Kavanaugh, J.,
for three-judge court), ajf'd, 565 U.S. 1104 (2012). To that end, federal campaign-
finance law broadly prohibits foreign nationals from making contributions,
donations, expenditures, or other disbursements in connection with federal,
state, or local candidate elections, and prohibits anyone from soliciting,
accepting, or receiving such contributions or donations. As relevant here, foreign
nationals may not make- and no one may "solicit,' accept, or receive"
from them- " a contribution or donation of money or
other thing of value" or "an express or implied promise to make a
contribution or donation, in connection with a Federal, State, or local
election." 52 U.S.C. § 30121(a)(l)(A), (a)(2).1283
The term
"contribution," which is used throughout the campaign-finance law,
"includes" "any gift, subscription, loan, advance, or deposit of money or
anything of value made by any person for the purpose of influencing
any election for Federal office." 52 U.S.C. § 30101(8)(A)(i). It excludes,
among other things, "the value of
[volunteer] services." 52
U.S.C. § 30101(8)(B)(i).
Foreign nationals are also barred from making "an
expenditure, independent expenditure, or disbursement for an electioneering
communication." 52 U.S.C. § 30121(a)(l)(C). The term
"expenditure" "includes" "any purchase, payment,
distribution, loan, advance, deposit, or gift of money or anything of value, made
by any person for the purpose of influencing any election for Federal
office." 52 U.S.C. §,30101(9)(A)(i). It excludes, among other things, news
stories and non-partisan get-out-the-vote activities. 52 U.S.C. §
3010I(9)(B)(i)-(ii). An "independent expenditure" is an expenditure
"expressly advocating the election or defeat of a clearly
identified candidate" and made independently of the campaign.
52 U.S.C. § 30101(17). An "electioneering communication" is a
broadcast communication that "refers to a clearly identified candidate for
Federal office" and is made within specified time periods and targeted at
the relevant electorate. 52 u.s.c. § 30104(f)(3).
The statute defines "foreign national" by reference to
FARA and the Immigration and Nationality Act, with minor modification. 52
U.S.C. § 30121(b) (cross-referencing 22 U.S.C. § 61 l(b)(l)-(3) and 8 U.S.C. §
1101(a)(20), (22)). That definition yields five, sometimes- overlapping
categories of foreign nationals, which include all of the
individuals and entities relevant for present purposes-namely, foreign
governments and political parties, individuals
outside of the U.S. who are not legal permanent residents, and
certain non-U.S. entities located outside of the U.S. ·
A and willful[]" violation involving an aggregate of $25,000
or more in a calendar year is a felony. 52 U.S.C. § 30109(d)(l)(A)(i); see Bluman, 800 F. Supp.
2d at 292 (noting that a willful violation will require some "proof of the
defendant's knowledge of the law"); United
States v. Danielczyk, 917 F. Supp.
2d 573, 577 (E.D. Va. 2013) (applying willfulness standard drawn from Bryan v. United States, 524 U.S. 184, 191-92 (1998)); see also Wagner v. FEC, 793 F.3d 1, 19 n.23 (D.C. Cir. 2015) (en bane) (same).
A "knowing[] and willful[]" violation involving an aggregate of $2,000 or
more in a calendar year, but less than $25,000, is a misdemeanor. 52 U.S.C. §
30109(d)(l)(A)(ii).
b. Application to June 9 Trump Tower Meeting
The Office considered whether to charge Trump Campaign officials
with crimes in connection with the June 9 meeting described in Volume I,
Section IV.A.5, supra. The Office concluded that, in light of the
government's substantial burden of proof on issues of intent
("knowing" and "willful"), and the difficulty of establishing
the value of the offered information, criminal charges would not meet the
Justice Manual standard that "the admissible evidence will probably be
sufficient to obtain and sustain a conviction." Justice Manual§ 9-27.220.
In brief, the key facts are that, on June 3, 2016, Robert
Goldstone emailed Donald Trump Jr., to pass along from Emin and Aras Agalarov
an "offer" from Russia's "Crown prosecutor" to "the
Trump campaign" of “official documents and information that would incriminate
Hillary and her dealings with Russia and would be very useful to [Trump Jr.'s]
father." The email described this as "very high level and sensitive
information" that is "part of Russia and its government's support to
Mr. Trump-helped along by Aras and Emin." Trump Jr. responded: "if it's
what you say I love it especially later in the summer." Trump Jr. and Emin
Agalarov had follow-up conversations and, within days, scheduled a meeting with
Russian representatives that was attended by Trump Jr., Manafort, and Kushner.
The communications setting up the meeting and the attendance by high-level
Campaign representatives support an inference that the Campaign anticipated
receiving derogatory documents and information from official Russian sources
that could assist candidate Trump's electoral prospects.
This series of events could implicate the federal election-law ban on
contributions and donationsbyforeignnationals,52U.S.C.§3012l(a)(l)(A).
Specifically, Goldstone passed along an offer purportedly from a Russian
government official to provide "official documents and information"
to the Trump Campaign for the purposes of influencing the presidential
election. Trump Jr. appears to have accepted that offer and to have arranged a
meeting to receive those materials. Documentary evidence in the form of email
chains supports the inference that Kushner and Manafort were aware of that
purpose and attended the June 9 meeting anticipating the receipt of helpful
information to the Campaign from Russian sources.
The Office considered whether this evidence would establish a
conspiracy to violate the foreign contributions ban, in violation of 18 U.S.C.
§ 371 ; the solicitation of an illegal foreign- source contribution; or the
acceptance or receipt of "an express or implied promise to make a [foreign-source]
contribution," both in violation of 52 U.S.C. § 3012l(a)(l)(A), (a)(2).
There are reasonable arguments that the offered information would constitute a
"thing of value" within the meaning of these provisions, but the Office
determined that the government would not be likely to obtain and sustain a
conviction for two other reasons: first, the Office did not obtain admissible
evidence likely to meet the government's burden to prove beyond a reasonable
doubt that these individuals acted "willfully," i.e., with
general knowledge of the illegality of
their conduct; and, second, the
government would likely encounter difficulty in proving beyond a reasonable
doubt that the value of the promised information exceeded the threshold for a
criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).
i. Thing-of Value Element
A threshold legal question is whether providing to a campaign
"documents and information" of the type involved here would
constitute a prohibited campaign contribution. The foreign contribution ban is
not limited to contributions of money. It
expressly prohibits "a
contribution or donation of money or other
thing of value." 52
U.S.C. § 3012l(a)(l)(A), (a)(2) (emphasis added). And the term
"contribution" is defined throughout the campaign-finance laws to
"include[]" "any gift, subscription, loan, advance, or deposit
of money or anything of
value." 52 U.S.C. § 30101(8)(A)(i)
(emphasis added).
The phrases "thing of value" and "anything of value"
are broad and inclusive enough to encompass at least some forms of valuable
information. Throughout the United States Code, these phrases serve as "term[s]
of art" that are construed "broad[ly]." UnitedStatesv.Nilsen,967F.2d 539, 542 (11th Cir. 1992) (per curiam)
("thing of value" includes "both tangibles and intangibles");
see also, e.g., 18 U.S.C. §§ 20l(b)(l), 666(a)(2) (bribery statutes); id. §
641 (theft of government property). For example, the term "thing of value"
encompasses law enforcement reports that would reveal the identity of
informants, United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979); classified materials, United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991); confidential
information about a competitive bid, United
States v. Matzkin, 14 F .3d 1014, I 020 (4th Cir.
1994); secret grand jury information, United
States v. Jeter, 775 F.2d 670, 680 (6th Cir.
1985); and information about a witness's whereabouts, United States v. Sheker, 618 F.2d 607, 609 (9th Cir.
1980) (per curiam). And in the public corruption context, " '
thing of value' is defined broadly to include the value which the defendant
subjectively attaches to the items received." United States v. Renzi, 769 F.3d 731,744 (9th Cir. 2014) (internal quotation
marks omitted).
Federal Election Commission (FEC) regulations recognize the value
to a campaign of at least some forms of information, stating that the term "anything
of value" includes "the provision of any goods or
services without charge," such as "membership lists" and
"mailing lists." 11 C.F.R. § 100.52(d)(l). The FEC has concluded that the
phrase includes a state-by-state list of activists. See Citizens for Responsibility and Ethics in
Washington v. FEC, 475 F.3d 337, 338 (D.C. Cir.
2007) (describing the FEC's findings). Likewise, polling data provided to a
campaign constitutes a "contribution." FEC Advisory Opinion 1990-12
(Strub), 1990 WL 153454 (citing 11
C.F.R. § 106.4(6)). And in the
specific context of the foreign-contributions ban, the FEC has concluded that
"election materials used in previous Canadian campaigns," including
"flyers, advertisements, door hangers, tri-folds, signs, and other printed
material," constitute "anything of value," even though "the
value of these materials may be nominal or difficult to ascertain." FEC
Advisory Opinion 2007-22 (Hurysz), 2007 WL 5172375, at *5.
These authorities would support the view that candidate-related
opposition research given to a campaign for the purpose of influencing
an election could constitute a contribution to which the foreign-source ban
could apply. A campaign can be assisted not only by the provision of funds, but
also by the provision of derogatory information about an opponent. Political campaigns
frequently conduct and pay for opposition research. A foreign entity that
engaged in such 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. At
the same time, no judicial decision has treated the voluntary provision of
uncompensated opposition research or similar information as a thing of value that
could amount to a contribution under campaign-finance law. Such an
interpretation could have implications beyond the foreign-source ban, see 52
U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and
raise First Amendment questions. Those questions could be especially difficult
where the information consisted simply of the recounting of historically
accurate facts. It is uncertain how courts would resolve those issues.
ii. Willfulness
Even assuming that the promised "documents and information
that would incriminate Hillary" constitute a "thing of value"
under campaign-finance law, the government would encounter other challenges in
seeking to obtain and sustain a conviction. Most significantly, the government
has not obtained admissible evidence that is likely to establish the scienter
requirement beyond a reasonable doubt. To prove that a defendant acted "knowingly
and willfully," the government would have to show that the defendant had
general knowledge that his conduct was unlawful. U.S. Department of Justice, Federal Prosecution of
Election Offenses 123 (8th ed. Dec. 2017) ("Election Offenses"); see Bluman, 800 F. Supp. 2d at 292 (noting that a willful
violation requires "proof of the defendant's knowledge of the
law"); Danielczyk, 917 F. Supp. 2d at 577 ("knowledge of general
unlawfulness"). "This standard creates an elevated scienter element
requiring, at the very least, that application of the law to the facts in
question be fairly clear. When there is substantial doubt concerning whether
the law applies to the facts of a particular matter, the offender is more
likely to have an intent defense." Election
Offenses 123. ·
On the facts here, the government would unlikely be able to prove
beyond a reasonable doubt that the June 9 meeting participants had general
knowledge that their conduct was unlawful. The investigation has not developed
evidence that the participants in the meeting were familiar with the
foreign-contribution ban or the application of federal law to the relevant
factual context. The government does not have strong evidence of surreptitious
behavior or effo11s at concealment at the time of the June 9 meeting. While the
government has evidence of later efforts to prevent disclosure of the nature of the June 9
meeting that could circumstantially provide support for a showing of scienter, see Volume
II, Section II.G, infra, that concealment occurred more than a year later,
involved individuals who did not attend the June 9 meeting, and may reflect an
intention toavoidpoliticalconsequencesratherthananypriorknowledgeofillegality. Additionally,
in light of the unresolved legal questions about whether giving "documents
and information" of the sort offered here constitutes a campaign contribution, Trump
Jr. could mount a factual defense that he did not believe his response to the
offer and the June 9 meeting itself violated the law. Given his less direct
involvement in arranging the June 9 meeting, Kushner could likely mount a
similar defense. And, while Manafort is experienced with political campaigns,
the Office has not developed evidence showing that he had relevant knowledge of these legal
issues.
iii. Difficulties in Valuing Promised Information
The Office would also encounter difficulty proving beyond a
reasonable doubt that the value of
the promised documents and
information exceeds the $2,000 threshold for a criminal violation, as well as
the $25,000 threshold for felony punishment. See 52 U.S.C. § 30109(d)(l). The type
of evidence commonly used to establish the value of non-monetary contributions-such
as pricing the contribution on a commercial market or determining the upstream
acquisition cost or the cost of distribution-would likely be unavailable or
ineffective in this factual setting. Although damaging opposition research is
surely valuable to a campaign, it appears that the information ultimately
delivered in the meeting was not valuable. And while value in a conspiracy may
well be measured by what the participants expected to receive at the time of
the agreement, see, e.g., United States v.
Tombrello, 666 F.2d 485, 489 (11th Cir.
1982), Goldstone's description of the offered material here was quite general. His
suggestion of the information's value-i.e., that it would "incriminate
Hillary" and "would be very useful to [Trump Jr.'s] father"-w as non- specific
and may have been understood as being of
uncertain worth or reliability,
given Goldstone's lack of direct access to the original source. The uncertainty
over what would be delivered could be reflected in Trump Jr.'s response ("if it’s what you say I love it") (emphasis added).
Accordingly, taking into account the high burden to establish a
culpable mental state in a campaign-finance prosecution and the difficulty in
establishing the required valuation, the Office decided not to pursue criminal
campaign-finance charges against Trump Jr. or other campaign officials for the
events culminating in the June 9 meeting.
Mueller 183-188
