[EL] Information as a thing of value

Fri Jul 14 11:05:52 PDT 2017

https://theintercept.com/2017/07/14/just-six-days-after-trump-jr-s-meeting-guccifer-2-0-emailed-me-but-there-was-one-key-difference/

On Fri, Jul 14, 2017 at 12:51 PM, Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> 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> 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.*
>>
>> [image: 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>
>> *Date: *Friday, July 14, 2017 at 7:48 AM
>> *To: *Election Law Listserv <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.
>>
>> [image: 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.
>>
>> [image: 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>
>> *Date: *Friday, July 14, 2017 at 7:25 AM
>> *To: *"JBoppjr at aol.com" <JBoppjr at aol.com>, Rick Hasen <rhasen at law.uci.edu>,
>> Election Law Listserv <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] *On Behalf Of *
>> JBoppjr at aol.com
>> *Sent:* Friday, July 14, 2017 9:30 AM
>> *To:* rhasen at law.uci.edu; 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 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.*
>>
>> [image:
>> tps://www.addtoany.com/share#url=http://electionlawblog.org/?p=93830&title=9th
>> Circuit 1980 Case: â€œIn]
>> <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>
>>
>>
>>
>> [image: is message is for the use of the intended recipient only. It is
>> from a law firm and]
>>
>>
>>
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>
>
>
> --
> Mark Rush
>
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