[EL] ELB News and Commentary 12/18/19

[Rick Hasen]

Missing from the House Report on Impeachment: A Discussion of Whether the President Violated Campaign Finance Laws<https://electionlawblog.org/?p=108461>
Posted on December 18, 2019 9:47 am<https://electionlawblog.org/?p=108461> by Rick Hasen<https://electionlawblog.org/?author=3>

When the Ukraine story broke, I wrote <https://slate.com/news-and-politics/2019/09/trump-ukraine-campaign-finance-crime.html> at Slate:

Putting aside whether Trump<https://www.politico.com/magazine/story/2019/09/21/trump-bribe-ukraine-228151> made promises in order to get Biden-related dirt, or whether his conduct counts as extortion or bribery, there is a good argument that if the facts as reported are true, Trump committed a new campaign finance crime. (Trump has already been directly implicated<https://slate.com/news-and-politics/2018/08/michael-cohens-guilty-plea-directly-implicates-donald-trump-in-a-felony.html> in Michael Cohen’s campaign finance offense related to the Stormy Daniels payment, for which the president’s former lawyer is currently serving prison time). The case against this sort of behavior as a campaign finance crime was much stronger, though, before Mueller issued his report<https://slate.com/news-and-politics/2019/04/mueller-report-searchable-pdf.html> investigating foreign interference in the 2016 elections and refused to prosecute Trump Jr.

Federal law<https://codes.findlaw.com/us/title-52-voting-and-elections/52-usc-sect-30121.html> makes it a crime for any person to “solicit” any “thing of value” from a foreign national. Could Trump pressing Ukraine’s president to help his candidacy by investigating a political rival qualify as a crime under the statute?

In a later piece, I explained<https://slate.com/news-and-politics/2019/09/democrats-should-impeach-donald-trump-fast-ukraine.html> that whether or not Trump committed a campaign finance crime or other crimes was secondary to the question of whether he abused his power:

The story is clear, whether we hear from the whistleblower directly or not. The president has admitted the conduct; he disputes only its wrongfulness, describing his call as “very legal and very good<https://twitter.com/realDonaldTrump/status/1177543516236500997>.” And already today there is enough for the House to conclude that the president has abused his power and is worthy of impeachment. That’s true whether or not the solicitation of foreign opposition research is a campaign finance crime—I believe it is<https://slate.com/news-and-politics/2019/09/trump-ukraine-campaign-finance-crime.html?via=recirc_recent> and special counsel Robert Mueller suggested it could be illegal as well, even as he raised what he considered to be First Amendment issues—and it is true whether or not Trump’s conduct as reported in the partial summary of the conversation with Ukraine’s president amounted to the crime of extortion or bribery. The Mafia-like shakedown by Trump—along the lines of: That’s a really nice country you have; it would be a shame if something happened to it—needs to be condemned whether it amounted to a technical violation of the law or not.

The articles that the House will vote on today are for abuse of power and obstruction. They do not directly cover campaign finance crimes or bribery. But while the 658-page House Judiciary report <https://rules.house.gov/sites/democrats.rules.house.gov/files/CRPT-116hrpt346.pdf> includes detailed analysis of bribery (and pages 117-127 discusses the view that the President committed bribery), there’s no discussion of campaign finance law violations. Indeed, the words “campaign finance” appear only four times in the report, once in relation to separate charges against Lev Parnas, and three times in relation to DOJ’s apparent determination (without public analysis) that Trump’s conduct did not violate campaign finance laws.

Why did the House not include an analysis of the campaign finance violation as part of its abuse of power analysis, as it did with bribery? Perhaps there was not time for it given everything else that had to come together for this vote to be held now. But I think the answer may be that the public does not take campaign finance violations seriously. They are seen as “technical” violations that are a lot harder to sell to the public than bribery, abuse of power, or obstruction. And, as I mentioned in my first linked article above, Trump may have a First Amendment defense to seeing this conduct as a campaign finance crime.

But I do think there is a danger here of not calling out the campaign finance violation. As I wrote when Mueller refused to pursue Trump Jr. for campaign finance violations stemming from the Trump Tower meeting with Russian operatives:

[E]ven if Mueller believed there were First Amendment questions in play, he should have left that for the courts to decide given the strong national security interests at stake here. Mueller offered no First Amendment argument in his report. He merely flagged the issue and never provided any analysis to back up the First Amendment claim.

I’m afraid that this flagging of the issue does more harm than good. Mueller has now given campaigns credible reason to believe they can accept help from foreign governments because they may have a constitutional right to do so. That’s even more troubling for what it says about 2020 than what it says about 2016
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“As Kris Kobach left office, unsecured gun was found in filing cabinet, successor says”<https://electionlawblog.org/?p=108464>
Posted on December 18, 2019 9:46 am<https://electionlawblog.org/?p=108464> by Rick Hasen<https://electionlawblog.org/?author=3>

KC Star:<https://www.kansascity.com/news/politics-government/article238482678.html>

Kansas Secretary of State Scott Schwab’s office says that on the day last January it took over from outgoing secretary Kris Kobach, it found an unsecured gun in a filing cabinet.

The discovery was mentioned in a timeline Schwab aides produced as part of an investigation into 1,000 rounds of ammunition that went missing<https://www.kansascity.com/news/politics-government/article234284892.html> after they were purchased during Kobach’s tenure.

The timeline, obtained through a publicrecords request, provides new details about how the secretary of state’s office armed itself after Kobach gained the power<https://www.kansas.com/news/politics-government/article23498689.html> to prosecute voter fraud in 2015.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“New Jersey Governor Phil Murphy Signs Bill to Restore Voting Rights to People on Probation and Parole”<https://electionlawblog.org/?p=108459>
Posted on December 18, 2019 9:18 am<https://electionlawblog.org/?p=108459> by Rick Hasen<https://electionlawblog.org/?author=3>

Brennan Center release.<https://www.brennancenter.org/our-work/analysis-opinion/new-jersey-governor-phil-murphy-signs-bill-restore-voting-rights-people>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Rep. Lori Trahan’s campaign finances will be investigated further by House Ethics Committee”<https://electionlawblog.org/?p=108456>
Posted on December 18, 2019 9:12 am<https://electionlawblog.org/?p=108456> by Rick Hasen<https://electionlawblog.org/?author=3>

Boston Globe:<https://www.bostonglobe.com/metro/2019/12/17/house-ethics-committee-further-investigate-representative-lori-trahan-campaign-finances/HUOjLzqtbKj1wsp5ck93BM/story.html>

The House Ethics Committee said Tuesday it is conducting a further probe of Representative Lori Trahan after investigators found “substantial reason to believe” she violated campaign finance laws in her upset election victory in 2018.

Investigators with the Office of Congressional Ethics found that her husband donated $300,000 to her campaign — far in excess of the $2,700 allowed — and her campaign appears to have “intentionally misreported” the days some donations were made as part of its apparent financial maneuvering.

The Office of Congressional Ethics, in a 16-page report released Tuesday, concluded that although Trahan said her $274,000 income in 2018 from her consulting company, Concire, was sufficient to cover the loan she made to her campaign, her husband was the “true source” of the funds.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Couple Pleads Guilty To Voting In N.H. And Mass. During 2016 Election”<https://electionlawblog.org/?p=108454>
Posted on December 18, 2019 9:09 am<https://electionlawblog.org/?p=108454> by Rick Hasen<https://electionlawblog.org/?author=3>

NHPR:<https://www.nhpr.org/post/couple-pleads-guilty-voting-nh-and-mass-during-2016-election#stream/0>

A couple who split their time between New Hampshire and Massachusetts pled guilty on Monday to charges that they voted in both states during the November 2016 election.

The New Hampshire Attorney General’s office indicted Grace and John S. Fleming in September 2018 on charges that they committed two election violations each: voting in more than one state and “wrongful voting,” which prohibits voting more than once for any one office….

Assistant Attorney General Nicholas Chong Yen, who oversees the state’s election law unit, says that the Flemings’ plea agreement required them to acknowledge that they “knowingly” violated voting laws.

Chong Yen said the state is still pursuing several alleged wrongful voting cases in the 2016 elections, but he also emphasized that these handful of cases are not indicative of a systemic problem, and so-called voter fraud remains rare.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Right-Wing PAC Loses Challenge to Illinois Campaign-Finance Ban”<https://electionlawblog.org/?p=108451>
Posted on December 17, 2019 8:22 am<https://electionlawblog.org/?p=108451> by Rick Hasen<https://electionlawblog.org/?author=3>

Courthouse News Service:<https://www.courthousenews.com/right-wing-pac-loses-challenge-to-illinois-campaign-finance-ban/>

The Seventh Circuit on Monday rejected<http://www.courthousenews.com/wp-content/uploads/2019/12/liberty-pac.pdf> a conservative PAC’s challenge to an Illinois law banning direct campaign contributions by independent expenditure committees, citing the need to curb corruption.

The Illinois Liberty PAC is an independent expenditure committee founded by Dan Proft, a conservative radio talk-show host and former Republican candidate for governor.

Under state law, an independent expenditure committee is a type of political action committee that may raise unlimited funds but it is prohibited from contributing any of that money directly to a candidate, party or another PAC.

Taking its fight to court, Illinois Liberty claimed<https://www.courthousenews.com/campaign-finance-2/> this blanket prohibition violates the First Amendment because there are instances where the Illinois code lifts contribution caps for other entities and individuals. For example, if a candidate self-funds their campaign to the tune of $250,000 or more, the state election code waives contribution limits for all candidates in that race.

In these circumstances, Illinois Liberty PAC claims it should also be allowed to contribute unlimited money directly to candidates.

But a federal judge rejected this line of reasoning, and a panel of Republican-appointed Seventh Circuit judges affirmed Monday.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>


“Midland County officials just found a missing ballot box. It may change the result of a $569 million bond election.”<https://electionlawblog.org/?p=108449>
Posted on December 17, 2019 8:15 am<https://electionlawblog.org/?p=108449> by Rick Hasen<https://electionlawblog.org/?author=3>

Texas Tribune:<https://www.texastribune.org/2019/12/16/missing-midland-texas-ballot-box-could-throw-bond-election-question/>

A proposal for a $569 million bond to build two new high school buildings in Midland failed by 25 votes in the November election, a margin slim enough it set off calls for a recount.

The ballots were recounted manually, and to the delight of Midland ISD officials, the results flipped and the proposal passed by a margin of 11 votes.

But last week, a Midland elections staffer found a box on the bottom of a shelf in the office containing 836 ballots that weren’t tallied in the recount. Those votes threaten to again reverse the election results, which school officials are counting on to generate hundreds of millions of dollars for school construction.

The elections office obtained a court order to open the ballot box on Monday morning, when staffers began to count up the missing votes.

The first and unofficial vote tally on Nov. 5, which used the electronic ballots, took the missing ballots into account. The paper ballots are a physical copy of how constituents voted on the electronic system. The paper ballots came into play during the manual recount, which was missing the more than 800 ballots, making the recount number inaccurate.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


--
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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