[EL] Information as a thing of value

Mon Jul 17 10:19:09 PDT 2017

Don't think so Marty. The district court in *Bluman *actually took a
narrower view of the foreign nationals ban than I do:

Notably, [§ 30121(a)] as we interpret it ... does not restrain foreign
nationals from speaking out about issues or spending money to advocate
their views about issues. It restrains them only from a certain form of
expressive activity closely tied to the voting process—providing money for
a candidate or political party or spending money in order to expressly
advocate for or against the election of a candidate.

I would interpret the statute to include not only giving or spending money,
but at least some exchanges of (and solicitation of) information.

It seems to me that there are good reasons to think that a foreign
national's sharing of information with a campaign -- even when there's a
purpose to help it -- deserve greater constitutional protection than a
foreign national's *expenditure of money* for express advocacy.  At any
rate, the *Bluman *court seems to have thought so, and I agree for reasons
stated at the end of my original post
<https://www.justsecurity.org/43116/trump-jr-bad-didnt-violate-federal-campaign-finance-law/>.

Dan

On Mon, Jul 17, 2017 at 12:39 PM, Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> Seems to me as if Dan is actually taking issue with the result in *Bluman*.
> After all, the court there held that Dan's same foreign-national
> construction workers cannot *urge the public to vote for Clinton*.  It
> would appear to follow *a fortiori* from that holding that those same
> foreign nationals cannot provide the Clinton campaign with valuable
> information for the purpose of advancing that campaign.  After all,
> independent expenditures for the purpose of express public advocacy are *more
> *constitutionally protected--closer to the core of what the Free Speech
> Clause is all about--then is a contribution to a campaign, even when that
> contribution takes the form of a very private sharing of information.
>
> P.S.  On whether there was a solicitation, Trump Jr. told Hannity
> <https://twitter.com/rgoodlaw/status/885190718133850113> that he
> "probably pressed" the Russians for information at the meeting.
>
> On Mon, Jul 17, 2017 at 12:15 PM, Daniel Tokaji <dtokaji at gmail.com> wrote:
>
>> On Adav's point, my hypo
>> <https://www.justsecurity.org/43116/trump-jr-bad-didnt-violate-federal-campaign-finance-law/>
>> was that undocumented workers who helped build the Trump Tower later agree
>> to provide information to the Clinton campaign about their experience.  It
>> strikes me as rather odd to say that having a conversation with a
>> campaign is to "volunteer[] on behalf of a candidate" under 30101(8)(B)(i),
>> even if your motive is to help that campaign.
>>
>> Doug's point again reveals the problem with applying the statute here:
>> It doesn't distinguish between agents of a foreign government (which
>> Veselnitskay was held out as being) and other foreign nationals.  I think
>> a law specifically targeting information received from agents of a foreign
>> government would be different, much easier to defend on First Amendment
>> grounds.  But this law doesn't do that, so it doesn't matter whether she
>> was held out as doing this on behalf of the Russian government. We should
>> understand the definition of contributions in a way that will avoid
>> constitutional problems in other cases, as my proposed narrowing
>> construction does.
>>
>> I agree with Rick's position: enough to justify an inquiry for
>> solicitation of an in-kind contribution (and possibly coordinated
>> expenditures), but not enough to prove a violation.
>>
>> Dan
>>
>> On Mon, Jul 17, 2017 at 11:53 AM, Hess, Doug <HESSDOUG at grinnell.edu>
>> wrote:
>>
>>> Again, in the email it says it’s information from a government as *part
>>> of its effort to support Trump as candidate*.
>>>
>>>
>>>
>>> Of course, additional information would be necessary. E.g., who paid for
>>> the attorney’s trip to the US? But I wouldn’t take Don Jr.’s word for
>>> anything. Would you?
>>>
>>>
>>>
>>>
>>>
>>> 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:* Smith, Brad [mailto:BSmith at law.capital.edu]
>>> *Sent:* Monday, July 17, 2017 10:45 AM
>>> *To:* Daniel Tokaji <dtokaji at gmail.com>
>>> *Cc:* Stuart McPhail <smcphail at citizensforethics.org>;
>>> law-election at department-lists.uci.edu; Hess, Doug <HESSDOUG at Grinnell.EDU
>>> >
>>>
>>> *Subject:* Re: [EL] Information as a thing of value
>>>
>>>
>>>
>>> I think Dan is right here (I say that knowing it will costs our position
>>> support) and add that it largely reflects the informal, not articulated
>>> approach used during my time at the Commission--the "thing of value" needs
>>> some sort of market value.
>>>
>>>
>>>
>>> There is also a question, if you insist on the broader definition, that
>>> the info had no value at all. It sounds like it. If we're going to evaluate
>>> "thing if value" by subjective value to the campaign, this stuff was
>>> probably $0.
>>>
>>>
>>>
>>> But I still believe people are sliding too fast past "solicitation."
>>>  Look at 11 CFR 300.2(m) where the term is defined and examples given.
>>>
>>>
>>>
>>> Also consider the meeting. Trump jr. takes mtg., asks what she has, is
>>> told, terminates meeting. Now let's suppose that she actually had something
>>> of value:
>>>
>>>
>>>
>>> Trump might next have said: "what's your price for that?" It is legal to
>>> pay non-resident aliens for goods and services, and that would not be
>>> soliciting a contribution. (How a campaign might report the expenditure
>>> could be interesting, but not at issue here).
>>>
>>>
>>>
>>> He might have said, "now you say this comes from the Russian government:
>>> is that true? I can't take something of value from a non-resident alien."
>>>
>>>
>>>
>>> He might have said, "I'll have to check with our lawyers to see if we
>>> can use this."
>>>
>>>
>>>
>>> He might have said, as he apparently did, some variation of "this isn't
>>> worth discussing, let's get out of here."
>>>
>>>
>>>
>>> Some will think these unlikely (and I can think of many others) but
>>> that's irrelevant as to what he actually did, isn't it?
>>>
>>>
>>>
>>> Are you really going to say it is illegal "solicitation" based on the
>>> presumption that someone might be intending to solicit a contribution, but
>>> maybe not?
>>>
>>>
>>> Sent from my iPhone
>>>
>>>
>>> On Jul 17, 2017, at 10:17 AM, Daniel Tokaji <dtokaji at gmail.com> wrote:
>>>
>>> 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__linkprotect.cudasvc.com_url-3Fa-3Dhttps-3A__www.law.cornell.edu_uscode_text_52_30121-26c-3DE-2C1-2CFXZymM4x35-2DUbw6trHy4PNrB-5FUB71nQZYjqwYONgsbVftsF5Xe2PqwbqfUobcg1NQXEtN2-2D67fjBJnZsFDXRHe5X0sYjwooXoQgrZjfW7st5Sn14-26typo-3D1&d=DwMFAw&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=hnZDBWjJ_8hA7cuBPvFCogvzJQ3-wDmOQP9F4OKJVtw&s=1mNuOPH-hsPcpOsOhxgcylCrF4gJfHBKtKiGocvUD0k&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__linkprotect.cudasvc.com_url-3Fa-3Dhttps-3A__www.law.cornell.edu_uscode_text_52_30101-26c-3DE-2C1-2CZwL91GeVin7TEaHTz4kJApfKODPyOD2KWuss0QoCZK1xJV-5FONHH6TPsz-2D9KKVJ3h49Jzcze3Llh9UeBSFV7x4tvUEAXT6uW1cNPUr89XweqMzMJzpw-2C-2C-26typo-3D1&d=DwMFAw&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=hnZDBWjJ_8hA7cuBPvFCogvzJQ3-wDmOQP9F4OKJVtw&s=7JpkpLbHs1IAQrmjWUVLzUidhKiUWKBrCZEnfnFv1lk&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__linkprotect.cudasvc.com_url-3Fa-3Dhttps-3A__www.justsecurity.org_43116_trump-2Djr-2Dbad-2Ddidnt-2Dviolate-2Dfederal-2Dcampaign-2Dfinance-2Dlaw_-26c-3DE-2C1-2C7nQkyr4jGQrayQlMEhbe8V57km-5FPXx95NCI-5FKAgXIPrSruWvluEEwuay0J11orRB7czxi2Pyzpd1-2DJI6YAgRnke7-2DIUTfkFmH5-5FcHMb5wMi2GguQ5w-2C-2C-26typo-3D1&d=DwMFAw&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=hnZDBWjJ_8hA7cuBPvFCogvzJQ3-wDmOQP9F4OKJVtw&s=ujRE_NjEFdDbX9Cs8V8a0VfoXOmOtjfTQq08bJ2u_Ag&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=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttp-3A__www.douglasrhess.com-26c-3DE-2C1-2C8rrNqx-2DYuJ09y0DExJfoqYLd8b20wTE0DUGXtOkOj-5F51-5Fih0jMO0M5w-2D4XgF0HW1W9Ks0AkpoSiwW93FNRp2i4d4l2AgFYVgGSN3RpqIjRxww8vLbB7Thw-2C-2C-26typo-3D1&d=DwMFAw&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=hnZDBWjJ_8hA7cuBPvFCogvzJQ3-wDmOQP9F4OKJVtw&s=VKegBQUyo0Nhy1rHNVqu7JjXvvKGiNWfcAhNIlKnWaY&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
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-3A__-2526lt-3BHESSDOUG-40Grinnell.EDU-26c-3DE-2C1-2COV2hcCpNf-2DLdclYDH8npoG-2DnVKK5fT1W9Sg2W9cJAq3k-5FzniDsoFIRrOMDnY5QaHQvcMpAuvUOFSZy0Epqy7KXKWhROwl61i1Fik56kjdgj7xQ-2C-2C-26typo-3D1&d=DwMFAw&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=hnZDBWjJ_8hA7cuBPvFCogvzJQ3-wDmOQP9F4OKJVtw&s=sjy3HxxePSuLP_p2N0Gytltb6tQNnRsvk35C3zEesE8&e=>
>>> >
>>> 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
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-3A__-2526lt-3BHESSDOUG-40Grinnell.EDU-26c-3DE-2C1-2CP-2Dt-5F8jM2e-2D5qWAayLzwuITwJ2s0QsmnpjE5W77lmXXaIrFaDiAio-5FJDFf6L8Jq8pQVe4Nf-2D-2DewNJDaVQLiwrLQi7qaaJQSsJrKgfxg-2C-2C-26typo-3D1&d=DwMFAw&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=hnZDBWjJ_8hA7cuBPvFCogvzJQ3-wDmOQP9F4OKJVtw&s=qwmVWgqW0MyN2SmO7ZsT7GeDbcJq-_RFIwtXT2ETkpc&e=>>
>>> 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
>>> <https://urldefense.proofpoint.com/v2/url?u=https-3A__linkprotect.cudasvc.com_url-3Fa-3Dhttps-3A__urldefense.proofpoint.com_v2_url-253fu-253dhttp-2D3A-5F-5Fwww.douglasrhess.c-26c-3DE-2C1-2CFZI42vDau-2DTzXUTORZW4wFa5gXPGXZs3aw-2DUSYsy765Ut7-5Fw5iVycI5dZWbfy-5Fs7i54TmbvY6Kk2lWLUzaSpc3yBYAp2-2DhaH2PURofVlSbtGhRnC56rF-26typo-3D1&d=DwMFAw&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP-zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=hnZDBWjJ_8hA7cuBPvFCogvzJQ3-wDmOQP9F4OKJVtw&s=o8RAOAWxdEPtNesIL9h_OcW91kjZzDVh2T0iTOulKa8&e=>
>>> > om&d=DwIFAg&c=HUrdOLg_tCr0UMeDjWLBOM9lLDRpsndbROGxEKQRFzk&r=xr_OjwGHtP
>>> > -zw6I-DJj_MQ4cusLbiVT1bScGa0c8ZJo&m=juOe7Lt2C6zhgctRejhoErxefv-QeBOafc
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>>>
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> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937 <(202)%20662-9937>
>
>
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