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Understanding Impeachment (Part 2): Election Finance Law

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The scandal surrounding President Trump’s phone call of July 29 to the Ukrainian President Volodymyr Zelenskiyis metastasizing rapidly. As noted in Part 1 of this article, the scandal has expanded way beyond the single phone call and now involves statements and actions not only by Trump, but also Vice-President Pence, Attorney General Barr, Secretary of State Pompeo, Energy Secretary Perry, Trump’s personal lawyer Rudy Giuliani, Ambassador William Taylor, the special envoy to Ukraine, Kurt D. Volker, the American ambassador to the European Union, Gordon Sondland, among others.

Last week, Ellen Weintraub, chair of the Federal Election Commission, repeated her June-2019 reminder to political candidates that asking for help from foreign governments in a federal election is illegal. Yet in the bewildering law of impeachment and election finance, “illegal” doesn’t necessarily mean “impeachable”, while “impeachable” is not necessarily illegal.

Weintraub implied in her various announcements and tweets that federal election law is crystal clear. In June 2019she issued a statement: “Let me make something 100% clear to the American public and anyone running for public office: It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election. This is not a novel concept.” “She also sent the statement via Twitter with the introductory line: “I would not have thought that I needed to say this.“ She repeated her call last week.

Yet what Weintraub did not point out in her announcements is that the prosecutions for crimes under the election finance law are anything but straightforward, as the Mueller Report shows.

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Implications Of Election Finance Law

The immediate issue at hand is whether the president, the vice-president, the Secretary of State, the Attorney General and others may have committed a “high Crime or Misdemeanor” under the U.S. Constitution, not whether they have committed a felony under election finance law. Nevertheless, election finance law may be relevant in several ways.

Thus, while it is not a requirement that conduct be a crime for it to be impeachable, the fact of its being criminal could be seen as supporting evidence that it is impeachable. If the president’s critics can show that his conduct amounts to a felony under federal election finance law, that could strengthen the case that there is also a “high Crime or Misdemeanor” under the Constitution.

Conversely, if the president or vice-president could show that their conduct does not amount to a felony under the election finance law, that might be used as an argument that there was no “high Crime or Misdemeanor” under the Constitution.

The Trump Tower Meeting of June 9

The Mueller Report (p.192) notes that election campaign-finance law prohibits anyone from soliciting something of value from foreign nationals in connection with a Federal, State, or local election.” 52 U.S.C. § 30121(a)(1)(A), (a)(2). The solicitation must be “knowing and willful. If the thing of value involves more than $25,000 it is a felony. A willful violation will require some “proof of the defendant’s knowledge of the law”.

© 2019 Bloomberg Finance LP

The Mueller report examined in detail the Trump campaign meeting with agents of Russia on June 9, 2016, in which Donald Trump Jr. welcomed the possibility of negative information on Hillary Clinton. The Mueller Report ultimately found insufficient grounds for proceeding with prosecution for breach of election finance law (pp. 195-196).

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.”

The Mueller Report appears to have given the Trump campaign the benefit of the doubt as to their knowledge of the law since they were neophytes in the matter of political campaigns. A similar argument would be difficult for Trump or Pence to make, three years into Trump’s presidency, and following the explicit warning in June 2019 by the chair of the Federal Election Commission, following Trump’s statement stated in a television interview that he would see no problem in soliciting assistance from a foreign government.

Lawyers for President Trump might, however, try to mount a case that the “dirt on the Bidens” was of insufficient value to meet the $25,000 threshold to constitute a felony under the law. Indeed if, as Biden and Democrats say, that there was no wrongdoing by the Bidens in Ukraine, then a wily lawyer for President Trump might argue that “dirt on the Bidens” is inherently worthless and so fails to meet the $25,000 threshold to constitute a felony under election finance law.

“Russia If You’re Listening”

The Mueller Report also took notice of candidate Trump’s plea to Russia in 2016 to find “Hillary Clinton’s missing emails.” (p.57)

On July 27, 2016, Unit 26165 targeted XXX email accounts connected to candidate Clinton’s personal office. Earlier that day, candidate Trump made public statements that included the following: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”183 The “30,000 emails” were apparently a reference to emails described in media accounts as having been stored on a personal server that candidate Clinton had used while serving as Secretary of State."

Within approximately five hours of Trump’s statement, GRU officers targeted for the first time Clinton’s personal office. After candidate Trump’s remarks, Unit 26165 created and XXX sent malicious links targeting 15 email XXX accounts at the domain including an email account belonging to Clinton aide XXX. The investigation did not find evidence of earlier GRU attempts to compromise accounts hosted on this domain."

The Report implies, but does not conclude, that Trump’s invitation to Russia precipitated the attack by Russia.

Yet curiously, there is no finding in the redacted version of the Mueller Report as to whether there was anything illegal in Trump’s invitation on July 27, 2016, to Russia. The Report contains a three-page section (p.196-199) that is redacted. It apparently discusses whether there was a violation of campaign finance law in “another matter,” but doesn’t say what that matter is.

Did this matter concern Trump’s invitation to Russia to find Hillary’s emails? Did the Mueller report find that the “Hillary’s missing emails” also failed to $25,000 valuation threshold to constitute a felony under election finance law? We don’t know. Finding out what is in the redacted section may have a bearing on whether a case could be made that Trump’s request to Ukraine can be absolved for a similar reason.

For more on the impeachment: see Understanding Impeachment (Part 1)

And read also:

How Trump’s Cabinet Undermines The Rule Of Law

Trump And Authoritarian Propaganda

 

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