[EL] Information as a thing of value

Mon Jul 17 08:14:48 PDT 2017

Doug's original question gets to the heart of the problem with using
federal campaign finance law (in particular 52 U.S.C. § 30121
<https://www.law.cornell.edu/uscode/text/52/30121>) to target Trump
Jr.'s attempt to obtain information, at least without more than what the
emails reveal.  One could imagine a law that treats information sought
from agents of a foreign power differently from that sought from other
foreign nationals.  But this statute doesn't do that.  It bans the
solitication of contributions from a foreign national, regardless of
whether that person is acting as an agent of a foreign state. The same
thing, including information, thus can't be a contribution when it comes
from a an agent of a foreign power but not when it comes from another
foreign national.

One could and probably should read the statute, as Stuart to suggests, to
apply only where there is both a purpose to solicit (here on the part of
Trump Jr.) and the purpose to influence the election
(here, on Veselnitskay's part, see 30101(8)
<https://www.law.cornell.edu/uscode/text/52/30101> which defines
contributions).  But this doesn't do much to address troubling
hypotheticals like the one I raised in my post
<https://www.justsecurity.org/43116/trump-jr-bad-didnt-violate-federal-campaign-finance-law/>:
Clinton campaign staff interviewing undocumented workers who allegedly
helped build Trump Tower, trying to obtain incriminating information on her
opponent.  It isn't too hard to imagine a purpose on both ends -- for
Clinton's staff to obtain incriminating information and for the
non-citizens to help her campaign.  Do we really want both sides subjected
to potential civil and criminal liability for such communications?

My point isn't that information can never be a contribution.  That has to
be wrong, for reasons Rick has explained.  But I don't think it can be that
*any* valuable information should be considered a contribution either, at
least not without creating serious free speech problems.  That's why I
tentatively suggest that the term contribution should be understood to
include only things with a determinate monetary value, something more than
the vaguely described information set forth in the email chain.

So my answer could be different if it turns out Trump Jr. knew more about
the information being dangled before him than is evident from the emails.
For example, if there was a shared understanding that he was to receive
information that the Russian government spent a certain amount of money
to obtain or had a determinate value in the marketplace.  It would also be
different if additional evidence shows that Veselnitskay coordinated with
respect to campaign expenditures by her or another Russian national.  But
to understand in-kind contributions so broadly as to encompass -- and
potentially criminalize -- the vaguely described incriminating
information discussed in the emails strikes me as problematic, even if one
is (like me) a strong believer in regulation of the flow of money into
campaigns, including the foreign nationals' contributions ban.

Dan

On Mon, Jul 17, 2017 at 10:35 AM, Stuart McPhail <
smcphail at citizensforethics.org> wrote:

> That's right.
>
> On Mon, Jul 17, 2017 at 10:21 AM, Hess, Doug <HESSDOUG at grinnell.edu>
> wrote:
>
>> Thanks, Stuart.
>>
>> So, it seems to my non-attorney mind, that the distinction you make would
>> mean that some of the hypotheticals used to say the law is overly broad
>> don't support that conclusion. Of course, I may be presenting the
>> hypotheticals incorrectly.
>>
>> Douglas R Hess
>> Assistant Professor of Political Science
>> Grinnell College
>> 1210 Park Street, Carnegie Hall #309
>> Grinnell, IA 50112
>> phone: 641-269-4383
>>
>> http://www.douglasrhess.com
>>
>>
>>
>> -----Original Message-----
>> From: Stuart McPhail [mailto:smcphail at citizensforethics.org]
>> Sent: Sunday, July 16, 2017 6:12 PM
>> To: Hess, Doug <HESSDOUG at Grinnell.EDU>
>> Cc: law-election at department-lists.uci.edu
>> Subject: Re: [EL] Information as a thing of value
>>
>> One distinction is that the law only prohibits contributions - i.e.,
>> benefits conferred for the purpose of influencing an election. The hypos
>> you (library, preexisting report, responding to questions) list would not
>> consist of information conveyed for that purpose - so they're not
>> prohibited by the law.
>>
>> Sent from my iPhone
>>
>> > On Jul 16, 2017, at 12:41 PM, Hess, Doug <HESSDOUG at Grinnell.EDU> wrote:
>> >
>> > I've seen articles (Tokaji at Just Security and another in the Post by
>> Volokh) make the claim that if what Trump Jr did was illegal than any
>> conversation by a campaign with a non-citizen or request of information
>> from another government (i.e., asking how parental leave works in Norway)
>> is illegal.
>> >
>> > Is there a judicial doctrine or legal reason why a court cannot
>> distinguish between a foreign government or foreigners actively developing
>> information for a campaign versus research by a campaign or requests for
>> regular materials. Surely, using a public library or asking an official for
>> a report that exists or interviewing non-citizens are substantially
>> different from foreign governments or foreigners actively developing a set
>> of information with a strategy for its use, etc. Especially, if that
>> strategy was to favor one candidate and in the interests for a subversive
>> strategy by foreign policy or intelligence agencies.
>> >
>> > Or is that distinction not at issue?
>> >
>> > Douglas R Hess
>> > Assistant Professor of Political Science Grinnell College
>> > 1210 Park Street, Carnegie Hall #309
>> > Grinnell, IA 50112
>> > phone: 641-269-4383
>> > https://urldefense.proofpoint.com/v2/url?u=http-3A__www.douglasrhess.c
>> > om&d=DwIFAg&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP
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>> > ksRAcukCE&s=4lPgBcClzR7hODzzrzaHxD3J4oqmK1Vy9ykBILAbzBY&e=
>> >
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