[EL] Information as a thing of value

Mon Jul 17 08:30:38 PDT 2017

“…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.”

What other understanding of the meeting could there have been? It takes time and effort and skill to make such data available and useful. Unless the people in the meeting were just blowing smoke, it’s unlikely the information wouldn’t have taken time by one person or several people with significant skills to gather, sift, and assess. And, even if they were blowing smoke (i.e., had nothing), what was clearly offered (from the Russian government it seems from the email) was of that nature.

I guess I still don’t see interviewing non-citizens in your hypothetical as (necessarily) equivalent to an organized attempt of what the emails suggest. I guess if the non-citizen went to great lengths and provided information that required skilled and sustained effort, perhaps. But clearly, providing organized opposition research requires that.

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<http://www.douglasrhess.com/>

From: Daniel Tokaji [mailto:dtokaji at gmail.com]
Sent: Monday, July 17, 2017 10:15 AM
To: Stuart McPhail <smcphail at citizensforethics.org>
Cc: Hess, Doug <HESSDOUG at Grinnell.EDU>; law-election at department-lists.uci.edu
Subject: Re: [EL] Information as a thing of value

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://urldefense.proofpoint.com/v2/url?u=https-3A__www.law.cornell.edu_uscode_text_52_30121&d=DwMFaQ&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=t-CllGQxA5wKnrwmgONfX8NDD1T62GIELahfxlB8-6Y&s=ELK4TCIFe3kLauTio2IoDmSz7KKsB8ehZZ_5MOmzHjs&e=>) 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://urldefense.proofpoint.com/v2/url?u=https-3A__www.law.cornell.edu_uscode_text_52_30101&d=DwMFaQ&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=t-CllGQxA5wKnrwmgONfX8NDD1T62GIELahfxlB8-6Y&s=cdaFdSX3OOUpiLNAgkwXwYlEFCczHURcimXyfdZ9c4M&e=> which defines contributions).  But this doesn't do much to address troubling hypotheticals like the one I raised in my post<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.justsecurity.org_43116_trump-2Djr-2Dbad-2Ddidnt-2Dviolate-2Dfederal-2Dcampaign-2Dfinance-2Dlaw_&d=DwMFaQ&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=t-CllGQxA5wKnrwmgONfX8NDD1T62GIELahfxlB8-6Y&s=GOmolFC49uGS4w5h2MwInIJNwPnGpURq5PckOcAocoU&e=>:  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<mailto:smcphail at citizensforethics.org>> wrote:
That's right.

On Mon, Jul 17, 2017 at 10:21 AM, Hess, Doug <HESSDOUG at grinnell.edu<mailto: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<tel:641-269-4383>

http://www.douglasrhess.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.douglasrhess.com&d=DwMFaQ&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=t-CllGQxA5wKnrwmgONfX8NDD1T62GIELahfxlB8-6Y&s=2XqU6YtSl7FRNvX1CRpxRyuBcEZ3RsVrges-gQ--jOg&e=>

-----Original Message-----
From: Stuart McPhail [mailto:smcphail at citizensforethics.org<mailto:smcphail at citizensforethics.org>]
Sent: Sunday, July 16, 2017 6:12 PM
To: Hess, Doug <HESSDOUG at Grinnell.EDU<mailto:HESSDOUG at Grinnell.EDU>>
Cc: law-election at department-lists.uci.edu<mailto: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<mailto: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<tel:641-269-4383>
> https://urldefense.proofpoint.com/v2/url?u=http-3A__www.douglasrhess.c
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