[EL] Information as a thing of value

[Mark Scarberry]

Would Clinton have violated the law if she had asked a popular foreign leader to endorse her, as former President Obama endorsed Macron? (I don't know of any evidence that Macron sought the endorsement; I wouldn't be surprised if he expressed appreciation for it.)

Would a foreign leader who did so be at risk of U.S. criminal prosecution?

Mark

Mark S. Scarberry
Pepperdine University School of Law
________________________________
From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Mark Rush <markrush7983 at gmail.com>
Sent: Friday, July 14, 2017 8:55:05 AM
To: Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] Information as a thing of value

Hi all--

This strikes me as a situation that could explode far beyond Trump.  If value, etc. is interpreted as broadly as some critics suggest, this could result in repercussions for all candidates for any office.  The fact that the valuable info was received from a foreigner will become less important than the  fact that  valuable info is a thing of value that could be subject to some of the campaign spending restrictions being discussed.

This will be a bonanza for those called upon to write new campaign spending laws.  But, it will do little to improve the quality of campaigns.

On Fri, Jul 14, 2017 at 11:05 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Witness at Meeting: Trump Jr. Asked Russian Attorney “for evidence of illicit money flowing to the Democratic National Committee”<http://electionlawblog.org/?p=93850>
Posted on July 14, 2017 8:01 am<http://electionlawblog.org/?p=93850> by Rick Hasen<http://electionlawblog.org/?author=3>
AP reports.<https://apnews.com/dceed1008d8f45afb314aca65797762a?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP>
More evidence of a potential illegal solicitation<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/donald_trump_jr_s_free_speech_defense_is_as_bogus_as_it_sounds.html> of a thing of value from a foreign source.
As I said at Slate:<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/donald_trump_jr_s_free_speech_defense_is_as_bogus_as_it_sounds.html>
Let’s first start with the statute Trump Jr. may have violated. Federal law<https://www.law.cornell.edu/uscode/text/52/30121> makes it a potential crime<http://uscode.house.gov/view.xhtml?req=(title:52%20section:30109%20edition:prelim)> for any person to “solicit”<https://www.law.cornell.edu/cfr/text/11/110.20> (that is, expressly or impliedly ask for<https://www.law.cornell.edu/cfr/text/11/300.2>) the contribution of “anything of value” from a foreign citizen.
While we do not know enough to say that Trump Jr. should be charged with violating this statute, emails<https://twitter.com/DonaldJTrumpJr/status/884789418455953413> released<https://twitter.com/DonaldJTrumpJr/status/884789839522140166> by Trump Jr. himself on Tuesday (as the New York Times was about to report on them<https://www.nytimes.com/2017/07/11/us/politics/trump-russia-email-clinton.html?action=Click&contentCollection=BreakingNews&contentID=65556520&pgtype=article>) provide more than enough detail to merit an investigation by special counsel Robert Mueller…..
t seems obvious that “I love it” constitutes solicitation in this instance. And there is a very strong argument to be made that “very high level and sensitive information” coming from the government of Russia is a “thing of value” for purposes of federal campaign finance law. The Federal Election Commission has said that providing free polling information<http://electionlawblog.org/?p=93733> to a candidate is a thing of value. It has said that when Grover Norquist’s Americans for Tax Reform gave a list of conservative activists in 37 states<http://electionlawblog.org/?p=93762> to the Bush–Cheney campaign in 2004, this was a thing of value which had to be reported by the campaign, even if the list was publicly posted on the group’s website. It said that Canadian campaign literature<http://electionlawblog.org/?p=93752> which an American candidate wanted to borrow from in his own campaign is a thing of value, even if its value is “nominal or difficult to ascertain.” It said that opposition research<http://eqs.fec.gov/eqsdocsMUR/28044192498.pdf> provided by a political group to Republican candidates can count as an in-kind contribution. And a federal court, in the prosecution of New Jersey Sen. Robert Menendez<http://electionlawblog.org/?p=93757>, said that a thing of value need only have subjective value to the recipient.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93850&title=Witness%20at%20Meeting%3A%20Trump%20Jr.%20Asked%20Russian%20Attorney%20%E2%80%9Cfor%20evidence%20of%20illicit%20money%20flowing%20to%20the%20Democratic%20National%20Committee%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>



From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Friday, July 14, 2017 at 7:48 AM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Information as a thing of value

Bauer and Tokaji each weigh in this morning  on the debate:

Bauer: “Considering the Legal Defenses of the Trump Jr. Meeting”<http://electionlawblog.org/?p=93848>
Posted on July 14, 2017 7:46 am<http://electionlawblog.org/?p=93848> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Bauer<https://www.justsecurity.org/43111/legal-defenses-trump-jr-meeting/> at Just Security.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93848&title=Bauer%3A%20%E2%80%9CConsidering%20the%20Legal%20Defenses%20of%20the%20Trump%20Jr.%20Meeting%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


Tokaji: “What Trump Jr. Did Was Bad, But It Probably Didn’t Violate Federal Campaign Finance Law”<http://electionlawblog.org/?p=93846>
Posted on July 14, 2017 7:43 am<http://electionlawblog.org/?p=93846> by Rick Hasen<http://electionlawblog.org/?author=3>
Dan Tokaji <https://www.justsecurity.org/43116/trump-jr-bad-didnt-violate-federal-campaign-finance-law/> at Just Security.
[are]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93846&title=Tokaji%3A%20%E2%80%9CWhat%20Trump%20Jr.%20Did%20Was%20Bad%2C%20But%20It%20Probably%20Didn%E2%80%99t%20Violate%20Federal%20Campaign%20Finance%20Law%E2%80%9D>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


From: Trevor Potter <tpotter at capdale.com<mailto:tpotter at capdale.com>>
Date: Friday, July 14, 2017 at 7:25 AM
To: "JBoppjr at aol.com<mailto:JBoppjr at aol.com>" <JBoppjr at aol.com<mailto:JBoppjr at aol.com>>, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [EL] Information as a thing of value

As Jim’s posting recognizes, just saying that something is “directly related to a political campaign” hardly means it cannot be regulated or prohibited because of the First amendment.

Jim goes on to acknowledge  “ Of course there are prohibitions, corporations and labor unions may not make contributions to federal candidates, for instance”.
He could have added that there are prohibitions on contributions by foreign nationals, upheld recently against a First Amendment challenge, by the DC Circuit and then summarily by the Supreme Court. These are directly on point here. Plus the courts have of course upheld limitations on the size of contributions from permissible sources (individuals). So just saying the words “political campaign” and “first amendment” does not provide much guidance here. The question becomes whether a contribution of “anything of value” was given to the Trump campaign and its agents from an impermissible source, and that is a factual and definitional matter, both as to how “anything of value” is defined, and what was offered (or received).  Others have noted that there is a fair amount of FEC precedent defining “anything of value” . We will presumably soon learn more about what was offered by (or received from ) Russian foreign nationals…

Trevor Potter
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr at aol.com>
Sent: Friday, July 14, 2017 9:30 AM
To: rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: [EL] Information as a thing of value

But context does matter.  There is no suggestion in this case that the court analyzed the question under the First Amendment.  Obviously, the information Trump, Jr. hoped to receive, but did not, was directly related to a political campaign and thus protected by the First Amendment. Thus, this case is irrelevant.

I really think that the proponents of this theory - that information is a thing of value for purposes of being a "contribution" under the federal campaign law - should pause and consider the ramifications of this position, beyond their hope that it will finally "get Trump." There are significant ramification to viewing a campaign as having received a contribution if it receives information.

Of course there are prohibitions, corporations and labor unions may not make contributions to federal candidates, for instance.  If the information is viewed as coming from that source, it is prohibited and a crime.

But even if not prohibited, if Joe Blow tells a campaign some information that someone would view as having value, say his opponent - say, "hey Jill Smith likes you and you ought to contact her for a contribution" - it would be subject to contribution limits and reporting. Failure to do that would also be a crime. (And how much is this worth, another great issue for the opponent to dispute.)

Thus, a candidate receiving a contribution always has some legal ramifications.

Under these circumstances, I just dont see how any campaign would ever be willing to discuss anything about the campaign with anyone. This would have a devastating effect of the freedom of association protected by the First Amendment. Jim Bopp

In a message dated 7/14/2017 12:12:03 A.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
9th Circuit 1980 Case: “Information,” “State Secrets,” “Information Obtained for Political Advantage” All “Things of Value”<http://electionlawblog.org/?p=93830>
Posted on July 13, 2017 12:44 pm<http://electionlawblog.org/?p=93830> by Rick Hasen<http://electionlawblog.org/?author=3>
This case<http://www.leagle.com/decision/19801225618F2d607_11114/UNITED%20STATES%20v.%20SHEKER> presents a very different context than Donald Trump, Jr.<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/donald_trump_jr_s_free_speech_defense_is_as_bogus_as_it_sounds.html>, but the discussion is instructive:

II. Sufficiency of the Indictment
The indictment adequately charged Sheker with impersonating a federal officer to obtain a thing of value, within the meaning of 18 U.S.C. § 912.2<http://www.leagle.com/decision/19801225618F2d607_11114/UNITED%20STATES%20v.%20SHEKER#fid3> See U. S. v. Mitman, 459 F.2d 451<http://www.leagle.com/cite/459%20F.2d%20451> (9th Cir.), cert. den. 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 111 (1972). We do not embrace the government’s sweeping position that 18 U.S.C. 912 extends to anything that has value to the defendant. Such a broad reading of “value” negates any limitation the word could imply. By the same token, we cannot accept Sheker’s suggestion that 18 U.S.C. 912 covers only things having commercial value.Information can be a thing of value. Whaley v. U. S., 324 F.2d 356<http://www.leagle.com/cite/324%20F.2d%20356> (9th Cir. 1963). In normal English usage commercial worth is not the exclusive measure of value. For instance, state secrets might trade hands without cash consideration. Information obtained for political advantage might have value apart from its worth in dollars. In each case the information sought would have value to others,in addition to the seeker. Such is the case here. Stokes would see value in keeping his whereabouts unknown to Sheker. The criminal justice system, concerned with the safety of witnesses, has a similar interest. Because the information sought had value in these broader senses, we hold the indictment sufficient.
In view of this conclusion, we also hold that the challenged language in the indictment (“concerning the location of a witness against him”) was not prejudicial surplusage. The quoted words were properly included to explain why the information sought was valuable. See generally, U. S. v. Root, 366 F.2d 377<http://www.leagle.com/cite/366%20F.2d%20377>, 381 (9th Cir.), cert. den. 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1966).
The language of the statute is not sufficiently ambiguous to call into play the rule of lenity. As the Supreme Court said in Bell v. U. S., 349 U.S. 81<http://www.leagle.com/cite/349%20U.S.%2081>, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955):
[L]anguage used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read.
We find the statute unambiguous.
[tps://www.addtoany.com/share#url=http://electionlawblog.org/?p=93830&title=9th Circuit 1980 Case: “In]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D93830&title=9th%20Circuit%201980%20Case%3A%20%E2%80%9CInformation%2C%E2%80%9D%20%E2%80%9CState%20Secrets%2C%E2%80%9D%20%E2%80%9CInformation%20Obtained%20for%20Political%20Advantage%E2%80%9D%20All%20%E2%80%9CTh>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>

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