[EL] ELB News and Commentary 7/27/18

[Rick Hasen]

If Donald Trump Knew About the Meeting With Russians at Trump Tower, Would That Be a Campaign Finance Violation? It’s Complicated<http://electionlawblog.org/?p=100314>
Posted on July 27, 2018 8:36 am<http://electionlawblog.org/?p=100314> by Rick Hasen<http://electionlawblog.org/?author=3>

Yesterday CNN reported<https://www.cnn.com/2018/07/26/politics/michael-cohen-donald-trump-june-2016-meeting-knowledge/index.html>:

Michael Cohen, President Donald Trump’s former personal attorney, claims that then-candidate Trump knew in advance about the June 2016 meeting in Trump Tower in which Russians were expected to offer his campaign dirt on Hillary Clinton, sources with knowledge tell CNN. Cohen is willing to make that assertion to special counsel Robert Mueller, the sources said.
Cohen’s claim would contradict repeated denials by Trump, Donald Trump Jr., their lawyers and other administration officials who have said that the President knew nothing about the Trump Tower meeting until he was approached about it by The New York Times in July 2017.
This morning the President denied the allegation<https://www.washingtonpost.com/politics/trump-maintains-not-knowing-in-advance-about-meeting-with-russians-disputing-cohen-claim/2018/07/27/5e18f57a-9143-11e8-bcd5-9d911c784c38_story.html?utm_term=.836b01c2c085>.
In this den of liars, I have no idea whom to believe, and I think (as I’ve told reporters<https://www.washingtonexaminer.com/policy/courts/no-smoking-gun-of-campaign-finance-violations-by-trump-in-michael-cohen-tape-experts-say> about other aspects<https://apnews.com/7da3daf987ca46b8b127646caa93a35e> of alleged campaign finance violations involving Trump) that any potential for criminal campaign finance charges would depend upon some documentary or physical evidence corroborating allegations that have been made.
But suppose it is true that Trump knew of the meeting in advance. Would that violate campaign finance laws?
I have a hard time believing that it would by itself, but there is the potential for liability depending upon what he knew and what he said.
As I’ve discussed in relation to Don. Jr. and the Trump Tower meeting, it is illegal for a campaign (or an agent of a campaign) to solicit, facilitate the giving<http://electionlawblog.org/?p=93701>, or accept any thing of value<http://electionlawblog.org/?p=93762> from a foreign entity. I believe<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> that opposition research  would count as a thing of value<http://electionlawblog.org/?p=93830> (though others, like Eugene Volokh, have expressed some skepticism). For there to be criminal liability, violation of these rules would have to be wilful (likely you’d have to know it is illegal but acted anyway).
So, if the President knew there was a meeting with Russians but knew nothing about its content, there would be no violation. If he knew there was a meeting with Russians where they were discussing providing opposition research on Clinton to the campaign, and Trump encouraged it, knowing it would be a campaign finance violation, there could be criminal liability. And of course there are lots of in-between scenarios (such as Trump learning about the offer of oppo after the fact and doing nothing one way or the other).
There may be political ramifications here about a presidential candidate agreeing to meet with agents of a foreign adversary during the election potentially where they offered dirt on his opponent, but it is too early given what is known publicly to conclude that there’s a campaign finance violation here. (I’ve said the same thing about Stormy Daniels and Karen McDougal, and in those cases, there is the further issue whether the spending was for the campaign, or would have been done anyway to protect Trump’s reputation.) And finally, we don’t know what we don’t know, and what Mueller and the SDNY know.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


Daily Beast: Russian Hacker Targeted Sen. McCaskill’s 2018 Campaign (with Interesting Microsoft Angle)<http://electionlawblog.org/?p=100312>
Posted on July 26, 2018 2:33 pm<http://electionlawblog.org/?p=100312> by Rick Hasen<http://electionlawblog.org/?author=3>

Daily Beast:<https://www.thedailybeast.com/russian-hackers-new-target-a-vulnerable-democratic-senator>

The Russian intelligence agency behind the 2016 election cyberattacks targeted Sen. Claire McCaskill<https://www.thedailybeast.com/the-sexual-assault-case-that-haunts-claire-mccaskill> as she began her 2018 re-election campaign in earnest, a Daily Beast forensic analysis reveals. That makes the Missouri Democrat the first identified target of the Kremlin’s 2018 election interference.

McCaskill, who has been highly critical of Russia over the years, is widely considered to be among the most vulnerable Senate Democrats facing re-election this year as Republicans hope to hold their slim majority in the Senate. In 2016, President Donald Trump defeated Hillary Clinton by almost 20 points in the senator’s home state of Missouri.

There’s no evidence to suggest that this particular attack was successful.  Asked about the hack attempt by Russia’s GRU intelligence agency<https://www.thedailybeast.com/exclusive-lone-dnc-hacker-guccifer-20-slipped-up-and-revealed-he-was-a-russian-intelligence-officer>, McCaskill told The Daily Beast on Thursday that she wasn’t yet prepared to discuss it…..

In October, Microsoft wrested control of one of the spoofed website addresses—adfs.senate.qov.info. Seizing the Russians’ malicious domain names has been easy for Microsoft since August 2017, when a federal judge in Virginia issued a permanent injunction against the GRU hackers, after Microsoft successfully sued<https://www.thedailybeast.com/microsoft-pushes-to-take-over-russian-spies-network> them as unnamed “John Doe” defendants. The court established a process that lets Microsoft take over any web addresses the hackers use that includes a Microsoft trademark.

Microsoft redirected the traffic from the fake Senate site to its own sinkhole server, putting it in a prime position to view targets trying to click through to change their passwords.
The Daily Beast identified McCaskill as a target while investigating statements made by Microsoft VP Tom Burt last week in an appearance at the Aspen Security Forum. Burton discussed the Virginia injunction, and told the audience that it allowed Microsoft to thwart a phishing campaign against three midterm election candidates, who he declined to name.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
West Virginia SOS Rejects Blankenship Candidacy for W. Va. Senate Race Under State’s Newly Revised Sore Loser Law<http://electionlawblog.org/?p=100309>
Posted on July 26, 2018 12:48 pm<http://electionlawblog.org/?p=100309> by Rick Hasen<http://electionlawblog.org/?author=3>

Here is the three-page letter<https://sos.wv.gov/News-Center/Documents/LetterFromSecretaryWarner.pdf> (via Political Wire<https://politicalwire.com/2018/07/26/blankenship-third-party-bid-rejected/>).

If Blankenship sues, the legal questions could get very interesting, especially given the recent change in the law.
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Posted in ballot access<http://electionlawblog.org/?cat=46>


“Today’s Voter Suppression Tactics Have A 150 Year History”<http://electionlawblog.org/?p=100307>
Posted on July 26, 2018 10:27 am<http://electionlawblog.org/?p=100307> by Rick Hasen<http://electionlawblog.org/?author=3>

Gregory Downs<https://talkingpointsmemo.com/feature/todays-voter-suppression-tactics-have-a-150-year-history> for TPM.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>


“Democrats Propose Making It Illegal To Spread False Election Information”; Some Thoughts on Constitutionality<http://electionlawblog.org/?p=100305>
Posted on July 26, 2018 10:20 am<http://electionlawblog.org/?p=100305> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPost:<https://www.huffingtonpost.com/entry/false-voting-information-legislation_us_5b59dbf1e4b0de86f49468c3?c3h>

Several congressional Democrats plan to introduce legislation<https://assets.documentcloud.org/documents/4618841/Deceptive-Practices-07-25-2018.pdf> Thursday that would make it a federal crime to knowingly and intentionally publish false information about elections.

The legislation would criminalize knowingly spreading wrong information related to the time and place of elections as well as voter qualifications and registration status. The bill would also make it illegal to knowingly claim an endorsement from someone within 60 days of a federal election. Anyone who spread such misinformation would be subject to up to five years in prison and a $100,000 fine.

In my law review article, A Constitutional Right to Lie in Campaigns and Elections?<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>, I draw a distinction between laws barring false speech in campaigns (which is likely a First Amendment violation) and those that bar false speech about there where/when/how of voting (which is likely constitutional).

Since I wrote that Article, the Supreme Court appeared to agree on the constitutionality of such laws. As I explained at Slate<https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf>, in Minnesota Voters Alliance v. Mansky<https://www.supremecourt.gov/opinions/17pdf/16-1435_2co3.pdf>, “the court made it clear that a state ‘may prohibit messages intended to mislead voters about voting requirements and procedures.’ So Minnesota likely had the power to ban the ‘Please I.D. Me’ buttons, not because they are political, but because they are misleading. In an era of campaign dirty tricks, “fake news,” and misinformation, this is a welcome recognition that states have broad powers to stop false and misleading speech<https://scholarship.law.umt.edu/mlr/vol74/iss1/4/> about when and how to vote.”

This suggests that the part of the proposed law that would bar spreading wrong information about the time and place of elections as well as voter qualification and registration status would be constitutional, but the law barring false statements about campaign endorsements may well not be.
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Posted in campaigns<http://electionlawblog.org/?cat=59>


“Trump’s and the Koch Brothers’ War on Disclosure”<http://electionlawblog.org/?p=100303>
Posted on July 26, 2018 8:57 am<http://electionlawblog.org/?p=100303> by Rick Hasen<http://electionlawblog.org/?author=3>

Eliza Newlin Carney<http://prospect.org/article/trumps-and-koch-brothers-war-on-disclosure> for TAP.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Quote of the Day: Extreme Gerrymandering Edition<http://electionlawblog.org/?p=100301>
Posted on July 26, 2018 8:52 am<http://electionlawblog.org/?p=100301> by Rick Hasen<http://electionlawblog.org/?author=3>

“Perfect. It’s giving the finger to Sandy Levin….I love it.”

—One of the Republican line drawers in Michigan, describing the “finger-like” extensions to the shape of Rep. Levin’s contorted district, inav lawsuit defending the drawing of congressional districts as non-partisan, as quoted in the NYT.<https://www.nytimes.com/2018/07/25/us/michigan-gerrymandering.html>
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Maine Ranked-Choice Voting as a Case of Electoral-System Change”<http://electionlawblog.org/?p=100299>
Posted on July 26, 2018 8:06 am<http://electionlawblog.org/?p=100299> by Rick Hasen<http://electionlawblog.org/?author=3>

Jack Santucci<https://www.tandfonline.com/doi/full/10.1080/00344893.2018.1502208> has written this article for Representation. Here is the abstract:

Ranked-choice voting (RCV) manufactures an electoral majority in a fragmented candidate field. For RCV to pass at referendum, part of a reform coalition must be willing to lose election to the other part of that coalition, typically an out-of-power major party. A common enemy enables this sort of coalition by assuring (a) the out-of-power party of sufficient transfer votes to win and (b) a winner that junior reform partners prefer to the incumbent. I test this logic against the November 2016 adoption of RCV in Maine. First, I show that the most recent, runner-up party overwhelmingly supplied votes to the ‘yes’ side. I also show elite endorsements tending to come from this party, albeit not exclusively. Then I show a drift in the mass of public opinion, such that reform partners could coordinate. RCV is likely to find favour where voter preferences are polarised and lopsided, and where multiple candidates split the larger ideological bloc.
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>


“Legal Opinions Or Political Commentary? A New Judge Exemplifies The Trump Era”<http://electionlawblog.org/?p=100296>
Posted on July 26, 2018 8:03 am<http://electionlawblog.org/?p=100296> by Rick Hasen<http://electionlawblog.org/?author=3>

Carrie Johnson<https://www.npr.org/2018/07/26/632005799/legal-opinions-or-political-commentary-a-new-judge-exemplifies-the-trump-era?sc=17&f=1001&utm_source=iosnewsapp&utm_medium=Email&utm_campaign=app> for NPR:

Ho’s first opinion, in April, was a dissent in a case involving limits on campaign contributions in Austin, Texas. Candidates for municipal elections — people like mayors and city council representatives who represent fewer than 100,000 people — are barred from accepting donations of more than $350.

A three-judge panel on the appeals court upheld the ordinance, and a majority of the judges on the court voted to keep it that way.

Ho took a different approach, penning a 13-page dissent arguing the full court should hear the dispute. Ho said the contribution limit violated the First Amendment. Then, he went farther, decrying the size of the federal government…
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


Breaking: Federal Court Will Allow Lawsuit Over Citizenship Question on Census to Go Forward<http://electionlawblog.org/?p=100294>
Posted on July 26, 2018 8:02 am<http://electionlawblog.org/?p=100294> by Rick Hasen<http://electionlawblog.org/?author=3>

From today’s opinion<https://assets.documentcloud.org/documents/4618848/Census-Lawsuit-Order-on-Motion-to-Dismiss.pdf> in State of NY v. US Dep’t of Commerce:

Broadly speaking, in this Opinion, the Court reaches three conclusions with respect to Defendants’ motions. First, the Court categorically rejects Defendants’ efforts to insulate Secretary Ross’s decision to reinstate the citizenship question on the 2020 census from judicial review. Contending that Plaintiffs cannot prove they have been or will be injured by the decision, and citing the degree of discretion afforded to Congress by the Enumeration Clause and to the Secretary by statute, Defendants insist that this Court lacks jurisdiction even to consider Plaintiffs’ claims. As the Court will explain, however, that contention flies in the face of decades of precedent from the Supreme Court, the Second Circuit, and other courts. That precedent makes clear that, while deference is certainly owed to the Secretary’s decisions, courts have a critical role to play in entertaining challenges like those raised by Plaintiffs here.

Second, the Court concludes that the citizenship question is a permissible — but by no means mandated — exercise of the broad power granted to Congress (and, in turn, to the Secretary) in the Enumeration Clause of the Constitution. That conclusion is compelled not only by the text of the Clause, which vests Congress with virtually unlimited discretion in conducting the census, but also by historical practice. The historical practice reveals that, since the very first census in 1790, the federal government has consistently used the decennial exercise not only to obtain a strict headcount in fulfillment of the constitutional mandate to conduct an “actual Enumeration,” but also to gather demographic data about the population on matters such as race, sex, occupation, and, even citizenship. Moreover, it reveals that all three branches of the government — including the Supreme Court and lower courts — have blessed this dual use of the census, if not a citizenship question itself. In the face of that history and the broad constitutional grant of power to Congress, the Court cannot conclude that the Secretary lacks power under the Enumeration Clause to ask a question about citizenship on the census.

Third, although the Secretary has authority under the Enumeration Clause to direct the inclusion of a citizenship question on the census, the Court concludes that the particular exercise of that authority by Secretary Ross may have violated NGO Plaintiffs’ rights to equal protection of the laws under the Due Process Clause of the Fifth Amendment. That is, assuming the truth of NGO Plaintiffs’ allegations and drawing all reasonable inferences in their favor — as the Court must at this stage of the proceedings — they plausibly allege that Secretary Ross’s decision to reinstate the citizenship question on the 2020 census was motivated by discriminatory animus and that its application will result in a discriminatory effect. As discussed below, that conclusion is supported by indications that Defendants deviated from their standard procedures in hastily adding the citizenship question; by evidence suggesting that Secretary Ross’s stated rationale for adding the question is pretextual; and by contemporary statements of decisionmakers, including statements by the President, whose reelection campaign credited him with “officially” mandating Secretary Ross’s decision to add the question right after it was announced.

The net effect of these conclusions is that Defendants’ motions to dismiss are granted in part and denied in part. In particular, Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.

(h/t Sam Levine<https://twitter.com/srl/status/1022480724321075200>)
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Posted in redistricting<http://electionlawblog.org/?cat=6>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>


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