By now, anyone who pays the slightest attention to politics knows that Donald Trump told ABC’s George Stephanopoulos in an Oval Office interview last week that he would “take” opposition research on his 2020 election rivals, even from a foreign source like Russia, China or (eyeroll) Norway. Trump also said that he might not notify the FBI about his receipt of such information, and that FBI Director Christopher Wray was “wrong” to suggest in a recent Senate hearing that the law requires the bureau to be alerted.
Trump’s remarks sent howls of “collusion” across the landscape of cable news and the mainstream press. Pundits asked if the president had forgotten the lessons of 2016 and the Mueller probe. Had Trump gone, in the words of New Yorker columnist Susan B. Glasser, from proclaiming “no collusion” to admitting that he was, after all was said and done, “pro-collusion?”
In a rare display of unity, leading Democrats and Republicans assailed the president for apparently opening the door to a new round of election meddling. Even Lindsey Graham—Trump’s most loyal congressional enabler—gave the president a thumbs down. Asked by reporters if he would take foreign opposition research, Graham replied: “A foreign government comes to you as a public official and offers to help your campaign giving you anything of value, whether it be money or information on your opponent, the right answer is no.”
Graham was quick to add, however, that Democrats were just as culpable for paying ex-British spy Christopher Steele to prepare his much-ballyhooed dossier on Trump’s ties to Russia. “I hope my Democrat colleagues will be equally offended,” Graham said, “by the fact that this actually did happen in 2016 where a foreign agent was paid for by a political party to gather opposition research. All those things are wrong.”
To understand the relationship between opposition research and election law, it’s necessary to go back to the Supreme Court’s 1976 decision in Buckley v. Valeo.
In Buckley, the court drew the now-familiar sharp distinction between “contributions” made to political campaigns by outsiders and “expenditures” made by political candidates and their campaign committees. The court held that Congress, in passing the Federal Election Campaign Act (FECA), could lawfully restrict contributions to candidates to prevent “quid pro quo” corruption or the “appearance of corruption.” But the court also struck down important provisions of the FECA, holding that the First Amendment prohibited Congress from limiting the amount of money candidates and their committees could spend on elections from their own coffers.
The Buckley ruling would later serve as the legal basis for the court’s 2010 decision in Citizens United v. Federal Election Commission, which opened the door to unlimited “independent expenditures” by super PACs, corporations and unions.
Both Buckley and Citizens United left intact the FECA’s ban on electoral contributions by foreign persons, entities and governments. As the act stipulates, it is “unlawful” for a “foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.” The act also prohibits the solicitation, acceptance or receipt of foreign contributions, as well as conspiring with foreign nationals to receive contributions.
For donations worth $25,000 or more, knowing and willful violations of the act are punishable by up to five years in prison.
The foreign-contribution ban got the Trump campaign and Donald Trump Jr. in hot water with special counsel Robert Mueller. In his report, Mueller documented scores of contacts between Russian nationals and the campaign, including the widely publicized Trump Tower meeting of June 9, 2016, that promised to provide Junior with “dirt” on Hillary Clinton. Fortunately for the Trumps, Mueller concluded the contacts were insufficient to establish a criminal conspiracy.
Mueller also declined to pursue an FECA violation against Junior or anyone from the campaign because he was uncertain that he could prove the monetary value of the promised opposition research on Clinton. Even more significantly, according to the report, Mueller was unsure he could prove Junior or his associates knowingly and willfully intended to violate the act in convening the Trump Tower meeting. Ignorance, in the end, saved the day for the campaign.
Heading into the 2020 election, the ignorance excuse will no longer be available to the president. After two years of the Mueller investigation and all the attendant media coverage, no one—not even our blathering 45th commander in chief—could plausibly claim that accepting opposition research from a foreign source is legal.
But what about Clinton and the Democrats? With all the attention on Trump, it’s easy to forget the Clinton campaign’s election law transgressions associated with paying for the Steele dossier.
As many election law experts have noted, payments for opposition research, even if conducted by foreign nationals or governments, aren’t considered campaign contributions. Rather, they are seen as campaign expenditures, which are lawful and may be not be subject to monetary ceilings, as the Buckley case long ago instructed.
Nonetheless, the FECA requires candidates and their campaigns to itemize and report each expenditure in excess of $200 to the Federal Election Commission. Campaigns are also required to report the “purpose” of each disbursement. Knowing and willful violations of campaign-finance reporting requirements are punishable just as severely as knowing receipt of illegal campaign contributions.
So, what did the Clinton team do wrong in the last election?
In October 2017, the nonpartisan Washington, D.C.-based Campaign Legal Center (CLC) filed a complaint with the FEC, charging the Democratic National Committee and Clinton’s presidential committee, Hillary for America, with failing to accurately report the money funneled to Steele. According to Reuters, Steele was paid $168,000 for creating the dossier. Yet nowhere is Steele listed in the campaign’s FEC filings.
A CLC spokesperson confirmed with me last week that its complaint against the DNC and Hillary for America remains pending, unrebutted and unresolved at the FEC.
Whatever the FEC ultimately decides, neither major party, given the past, can honestly claim the high road when it comes to opposition research and elections. The Republican National Committee reportedly has already retained a variety of intelligence firms to conduct opposition research in the run-up to 2020. It would be truly shocking if the DNC hasn’t done the same.
Opposition research may be an intrinsic and unavoidable feature of American politics, but it isn’t too much to demand that our politicians be held to account, civilly and criminally, for courting foreign influence. And while we’re at it, we should also demand that our leaders, once in office, steer clear of intruding in elections abroad—something no nation on earth has perfected more expertly than our very own.