[EL] Information as a thing of value

Mon Jul 17 08:41:23 PDT 2017

My reading of the email exchange
<https://www.nytimes.com/interactive/2017/07/11/us/politics/donald-trump-jr-email-text.html>
is
different.  The most specific description I see is that it's "some official
documents and information that would incriminate Hillary and her dealings
with Russia and would be very useful to your father."  I think that falls
short of my suggested standard.   But this is really just a question of how
the law -- or at least my proposed interpretation of it -- applies to a
given set of facts, on which we can agree to disagree.  The big point is
that requiring a purpose on the part of both sides of the transaction
doesn't narrow the statute to exclude other cases in which a campaign is
seeking incriminating information and the foreign national is trying to
help the campaign by providing it.  Dan

On Mon, Jul 17, 2017 at 11:30 AM, Hess, Doug <HESSDOUG at grinnell.edu> wrote:

> “…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 <(641)%20269-4383>
>
>
>
> 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> 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
> <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]
> 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
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> >
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