This is a piece I posted yesterday on Just Security on the campaign finance law issues raised by the facts emerging about the Trump campaign-Russia contacts. It responds in particular to the constitutional and related concerns that some commentators have expressed about an ostensibly expansive application of the law in these circumstances. ----

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.

A reader has asked whether I am abandoning this site for others in writing about the campaign finance issues in the Russia-Trump campaign matter. Not so. But I did agree to write on this subject for Just Security, and I have touched on other related issues for Lawfare

.

Here are the various Just Security postings grouped together. (One earlier posting relates to another subject altogether, but all the recent ones address the Trump campaign-Russia issues.)

Also, there are always interesting questions to be asked about the ethics of political speech and action, not just the governing law. I wrote for Lawfare yesterday on President Trump’s defense of the June 6 meeting at Trump Tower. He takes it to be nothing more than politics-as-usual. I question that.

In 2016, Department of Homeland Security Secretary Jeh Johnson found that state election officials were suspicious of federal offers of assistance in defending their voting systems from cyber attack. He tried to persuade them to accept DHS designation of those systems as “critical infrastructure,” which would have given states access on a priority basis to a range of protections. The response he received ranged from “neutral to negative.” DHS concluded that, in the middle of an election, it was best not to have a protracted, politicized fight over this step. It focused on providing assistance where it could, and a large number of jurisdictions requested help. In January 2017, even with officials remaining skeptical about the designation, Secretary Johnson proceeded to issue it.

According to Johnson, and as further reflected in reporting by The Washington Post, election officials resisting this engagement with the federal government viewed it as a threat to” states rights.” At least one, Brian Kemp of Georgia, suspected that the Administration might be using the claimed Russian interference as a ploy to advance the political prospects of its favored candidate, Hillary Clinton.  Kemp and others were not convinced that the Obama Administration had properly fixed blame on the Russians. Congressional Republican leadership stayed close to their state allies on these points, also stressing the rights of states and declining to embrace the finding of Russian intrusions.

This is a revealing part of the 2016 story: government at war with itself, in the grip of partisanship, when under cyber attack from a foreign government. The attack was directed at the electoral process, and yet it was still not enough to produce a unified, fully coordinated federal and state response. For all the progress in bipartisan election administrative reform in recent years--and there has been a fair measure of it--Johnson’s account exposes key, and altogether familiar, structural obstacles.

Catastrophic Attack and Political Reform

June 22, 2017
posted by Bob Bauer

Had the Alexandria shooter had his way and murdered a score or more legislators on a baseball field, the country would have witnessed horrifying carnage--and, as Norm Ornstein has argued, it would have entered into genuine constitutional crisis. The slaughter of the members of one political party would have changed, in minutes, the balance of power in the federal government. A Killer’s Congress would have come into session for an extended time. Special elections don’t happen overnight, or within days or weeks.

It is hard to see how-- by what exceptional displays of political leadership--the government in these conditions could re-establish its legitimacy. It would be exceptionally hard in the “best of times”. In a divisive, polarized politics, it is close to unimaginable.

As Ornstein points out, we cannot say that this miserable state of affairs could not have been anticipated. On 9/11, the Capitol only escaped a devastating attack because Flight 93’s passengers gave their lives to bring down the plane. We also cannot say that no thought was then given to reforms to protect the continuity and democratic integrity of government if its senior ranks were to be violently cut down. Ornstein joined with others to establish a Continuity of Government Commission, which then recommended measures for assuring in the event of catastrophe a functioning, constitutionally legitimate presidency, Congress and the Supreme Court. That was fourteen years ago.

This is a follow-up to a first posting on this issue, now up on Just Security.

The text is also reproduced below:

-------------

As a potential crime under the campaign finance laws, the Trump campaign collusion with the Russians is well documented. As I contended in a recent essay, there is ample evidence in plain sight. The President applauded a foreign government for its interference in the election and suggested that he would be happy to see more of the same. Asked to disavow it, he declined to do so. Both the candidate and his campaign made extensive use of the material the Russians supplied via WikiLeaks on the campaign trail and in the presidential debates. The Russians had a willing partner in their design to influence the election and a clear signal that their intervention had value. There is more than enough in the public record to warrant inquiry into the Trump campaign’s “substantial assistance” to a foreign government in violation of the campaign finance laws.

Some analysts believe that this is evidence is insufficient. They insist that more is needed in the form of direct communication between the campaign and the foreign government. But they are mistakenly discounting the significance of the evidence in plain sight, and looking in the wrong direction for more proof, if in fact more is needed.