If the Trump campaign solicited support from Russians in the race against Hillary Clinton, did it, or any of its staff, have the mental state required for prosecution under federal criminal law? The discussion so far has largely centered on Donald Trump Jr.’s actions in scheduling the June 9, 2016 meeting at Trump Tower, and for a number of commentators, the issue seems to be his own personal liability. Professor Andy Grewal has made the point that the bar for establishing criminal intent is high. He is not alone in this judgment. Professor Saikrishna Prakash agrees.
It is without doubt correct that people should not go to jail for breaking a law unless the rule they violate is clear and they had the requisite intent to violate it. This is, of course, especially imperative when they are engaged in core First Amendment-protected activities like participating in a political campaign.
In the case of the June 2016 Trump Tower meeting, however, this argument can be--and has been-- both overstated and misdirected. Now that Jared Kushner has provided his account of the meeting, there is additional material useful in analyzing the campaign’s culpability.
Moreover, in sorting out these issues, it is essential to keep in mind what conduct the campaign finance law does, or does not reach. Commentators like Professor Prakash and Eugene Volokh fear that even if the Trump campaign, its candidate and it senior staff sought and received Russian Government help, an overly expansive construction of the campaign finance laws to reach this conduct could present major constitutional risks. For example, journalists might be liable for seeking or accepting from foreign nationals information intended to damage a political candidacy. These concerns are also off the mark, because the there is nothing exceptional or overbroad in a reading of the law that covers the Trump campaign conduct.
Law and Opinion in the de Blasio Investigation
The de Blasio campaign finance investigation ended with explanations from federal and state authorities of their decision not to pursue charges. The Manhattan District Attorney Cyrus Vance, Jr. chose to give the lengthier account: ten pages of conclusions of law and facts in a letter to the State Board of Elections, which had referred the matter for investigation. Yet again in recent legal history, the prosecutor declines to prosecute but does not stop there, adding his disapproval of the conduct he would not indict. He also suggests how the law could be improved so that it more directly, clearly prohibited the actions he does not approve of. The letter is something less than a model for productive prosecutorial encounters with the political process.
The District Attorney is passing on a case that involves a coordinated campaign of candidates, party leaders and party organizations to deliver support to targeted State Senate races. The question was whether party county committees became conduits for contributions to candidates that were larger in amount than what the candidates could accept directly. Donors were solicited for contributions to the parties, and the parties promptly provided the money to the campaigns for immediate use in paying their consultants. The coordinated campaign drew up plans for this arrangement with the county committees and submitted them to legal counsel for review. Counsel then approved of what the prosecutors refer to as an “end run” around the candidate contribution limits. The lawyer put his advice in writing and stayed in close contact with the client, providing “consistent advice” from planning to execution. The DA found no evidence of “bad faith” in the way the advice was sought or delivered.
The FEC and the Draining of Swamps
Former FEC Commissioner Ann Ravel left a lengthy note as she left town to explain how bad things had gotten at the FEC. Her agency would not help drain the swamp; a bloc of Commissioners had scuttled the agency’s mission to enforce campaign finance disclosure and limits. Republicans promptly disagreed. So the Democrats and Republicans, at odds over enforcement policy, also disagree about the extent and seriousness of their disagreements.
With the agency down to 5, and most of the Commissioners' terms having expired, the question is what happens post-Ravel. There has been talk that the Trump Administration may make a full round of nominations and look to reshape the agency. Speculations have included the possibility that the Administration would end the long-standing deference to the other party in the nomination of half of the Commission and perhaps stack the deck, maybe by putting Independents in place of the Democrats. The law limits parties to half the seats; it does not guarantee a party any of the seats.
This heavy-handed maneuver seems unlikely, especially if Senator McConnell has anything to say about it, which he does. He has seemed committed to the practice of giving each party a check on the other. And it is hardly clear why, if the FEC poses little threat to Republicans and their constituencies on the issues they most care about, McConnell and his colleagues would want to open up a fight on this distant front when other battles raging around them have a greater call on their time and attention.
The more interesting question is what role the FEC--campaign finance--plays in the swamp-draining Trump platform. The Ravel farewell report declares the “unlikelihood” that the FEC will help with the draining activity. The Administration might be inclined to agree.
The Allure of Reform and A Modest Proposal
Matt Grossman and David A Hopkins have pronounced many decades of liberal reform to be a failure. In a new book, they argue that the 1970s reform program did not lead to the success of liberal policies but may have been primarily advantageous to "ideological Republicans." For a party that is "a coalition of social groups, each with pragmatic policy concerns," the Democrats wound up undermining the transactional politics among various interests that would produce their preferred policy outcomes. Making matters worse was a shift of voter sentiment against government-driven solutions. The Republicans, happy to oblige the popular sentiment by blocking legislation, fared better than Democrats actually interested in passing it. Grossman and Hopkins conclude that in the future, Democrats "should assess whether each potential change is likely to benefit the Democratic coalition or the more ideological Republicans."
The problem always is the hazard of predicting the partisan or policy impact of any reform measure. To the extent that Grossman and Hopkins are urging Democrats to guess, they are necessarily allowing for the fairly large possibility that they will guess wrong. And even the ways in which they may be wrong are not anticipated all that reliably. In other words, both the benefits and the costs--the shape of success and the look of failure--will be very hard to judge. The mistakes made can be costly.
None of this would matter if those promoting reform could satisfy themselves that it satisfied other measures of success. For example, do those reforms enhance public confidence in the political process, or lessen the risk of corruption in government? Not so much, it seems, which is not to say that things would not be worse on this score without the reforms. But if it is true that reforms have contributed little to the success of the progressive policy agenda, the absence of other consolations, like a government that enjoys the public’s confidence, only compounds the sense of failure and dissatisfaction.
The Grossman/Hopkins argument tends to strengthen the case for targeted modest reforms that don't rest on ambitious expectations about policy or partisan effects. Rather than each party trying to game which reforms will serve their particular interests, they might collaborate on purging the current regulatory system of its inanities, inconsistencies and inefficiencies.
The FEC and the Fox News Debate
The FEC cannot apparently do enough to make its critics look good. The problem is not, of course, that the FEC as a whole, as a unified body, is taking action that invites complaint. It is the absence of constructive cooperation among the Commissioners when it seems that it should be possible. No one comes off well. And it all turns out worse than necessary. The Fox News Debate case is the most recent example.
It starts with the ostensible news, apparently actively promoted by one of the Commissioners, that the FEC had voted secretly to “punish” Fox News for expanding one of its sponsored Presidential debates to include more rather than fewer candidates. In fact, the FEC had to consider a formal complaint brought by an excluded candidate who was perhaps understandably miffed that he seemed to be the only Republican not permitted to take the stage in an August, 2015 debate, which involved a main event and an “undercard,” featuring seventeen candidates. The FEC did not go chasing after Fox: it was stuck with the task of resolving the complaint. And it always votes “in secret,” under statutory procedures, with the results publicly released later.
To address the complaint, the FEC had to apply the rule governing a media organization’s “staging” of candidate debates. These rules have been around for a long time—too long perhaps, and a reconsideration and revision may be long overdue. But the rule is the rule, and the General Counsel prepared a memo for the agency that found that it had not been followed. Rather than apply “pre-established objective criteria,” to the determination of which candidates would be invited, Fox improvised. It twice adjusted those criteria to maximize the candidates who would be included. And it freely admitted that it had done this “to include and accommodate” the large field.
Of course, the conclusion that this amounts to a violation of law seems more than a little peculiar. Fox was not engaged in the conduct the rule was concerned with: rigging the rules to favor particular candidates over another, which would be a form of prohibited corporate contribution to the golden circle of the included. For all practical purposes, Fox was dispensing altogether with any criteria for selection. As it happened, it still managed to leave out the complainant. After all, any criteria at all, even ones barely worth the name, will leave someone out.