THE WASHINGTON POST OPINIONS
Former White House counsel Bob Bauer explains some basic election law:
The ban on foreign national involvement in federal elections is exceptionally broad. It applies to any spending to affect an election: The prohibition applies to “contributions,” “expenditures,” “donations,” and “disbursements.” A “contribution” for this purpose includes any “thing of value.” The rules reach “promises” of such spending whether express or “implied,” and to campaign spending provided either directly or “indirectly.”
This basic prohibition extends even to foreign national “participation” in the decisions that a U.S. national makes about election-related spending. . . .
Congress has enacted and reenacted the foreign-national prohibition in 1966, 1974 and 2002, seeking on each occasion to strengthen it. So the lawyer reviewing a contact between the campaign and a foreign national—particularly a foreign national with apparent ties to a foreign government—would understand that the rules in question are not among the backwater provisions of the law, under-enforced relics of the aged and discredited regulations. The lawyer would also be familiar with the congressional investigations and criminal investigations that arose out of allegations that China developed and implemented a plan to influence the course of the 1996 presidential election. And, finally, he or she would keep in mind that the Supreme Court recently affirmed in Bluman v. Federal Election Commission the constitutionality of these draconian legal controls.
Then there is the U.S. side of the equation. There is a reason — aside from common sense and patriotism — why no other major presidential campaign of which we are aware had 80-plus contacts with Russians and sent the most senior advisers to a meeting to get dirt on its opponent:
Federal election law pairs … these prohibitions on foreign national electoral activity with restrictions on the behavior of the would-be U.S. beneficiaries. U.S. nationals, including campaigns, cannot “substantially assist” a foreign national in any of these activities, and Americans cannot solicit, accept or receive any such illegal foreign-national support. Viewed together, these prohibited activities— assistance, solicitation, acceptance, or receipt—certainly capture the essence of what some might understand by references to “collusion.”
In Bauer’s mind, no competent lawyer would let anyone on the campaign go to that meeting:
The Russians did not merely offer information, plucked from the sky: In the first place, they had to have procured it. To have done so would normally require the expenditure of funds “in connection with” a federal election: opposition material assembled on a U.S. presidential candidate. Certainly the Russian traveling party spent money to travel to the United States for the meeting. Both the material they proposed to provide and the expenses associated with creating and arranging to deliver it raise the serious question of in-kind contributions to the campaign. Moreover, the hypothetical campaign lawyer would have to be concerned that urging the campaign to invest its own resources in a specific line of attack on Hillary Clinton would constitute illegal “participation” in the campaign’s decision-making on its own spending.
In addition, the lawyer would consider that any meeting with a foreign government to discuss mutual goals in winning an election could constitute an illegal “solicitation” of unlawful foreign national spending.. The “acceptance” of the meeting could be such a solicitation if the foreign national dangled the possibility of a benefit and the U. S. campaign, in pursuing the discussion, made clear that it was in the market and open for business. The willingness to discuss Russian government support on this one occasion could be an additional ground for exposure under the solicitation ban. By taking the meeting, the campaign would be signaling an interest in whatever the foreign government might have to offer in the future.
And those are just the campaign finance law issues. Let’s not forget, as Bauer points out, that other crimes may have been committed by “signaling to the Russians through WikiLeaks—or directly from the candidate—that their hacking and carefully timed distribution of stolen material was welcome and valuable to the Trump candidacy. Evidence of this encouragement and guidance could support a case of illegal ‘substantial assistance’ to the Russian electoral intervention.” This is not even a close call because we are talking about Russians having “direct discussion with the campaign, such as the one at Trump Tower, and other channels of communication that could have guided their understanding of how the campaign might benefit from Russia’s use of online political messaging and the release of stolen materials.”
Put Trump to the side for a moment. Everyone in that meeting — Paul Manafort, Donald Trump Jr. and Jared Kushner — has some serious legal exposure, even apart from any untrue statement he might have later made to investigators and/or Congress.
That leaves us with a couple of possibilities: (1) Either Trump had no knowledge of the meeting whatsoever but engaged in a course of conduct designed to prevent inquiry into that incident (and/or others) or (2) he knew in advance, approved of the meeting and then tried to disable the investigation. We are not doubting as to whether there was cooperation, most likely illegal cooperation, between senior campaign officials and Russians; we are now down to arguing over when Trump learned about the Russian confab. No wonder Trump is freaking out.