A Legal Analysis of the Potential Liabilities the Trump Campaign Faces from Its “Collusion” with the Russian Government

Please see:

The Trump Campaign-Russia Alliance and Campaign Finance: A Response to Skeptics and a Statement of the Case

by Bob Bauer [former White House Counsel under POTUS 44]

Comprehensive highlights from this piece, which delves into “the prospects for a special counsel prosecution of campaign finance charges,” with some quite detailed reference to U.S. Federal Election Commission (FEC) precedents and regulations, include:

  1. It is not necessary to construct a theory that captures the notion behind “collusion” by making the case for illegal “’coordination.”
  2. …[T]here are two … clear grounds for federal campaign finance law liability: soliciting a “thing of value” from a foreign national, and “substantially assisting” the foreign national in spending to influence an election.
  3. The law does not reach every “thing of value” a foreign national might provide to a campaign. However, the coverage of prohibited “things of value” is broad….
  4. [T]he term “thing of value” is comprehensive: whatever is not “money” but is donated or spent for the purpose of influencing an election. Items of opposition research are clearly “things of value.” It is odd that there should be any question about this in the Russia-Trump case, given the evident importance in the campaign of the WikiLeaks hacks.
  5. A foreign government has no First Amendment right to influence our elections, and campaigns have no such right to invite or accept their support.
  6. A campaign may not solicit foreign national support, including any “thing of value.”
  7. If [a political] campaign provides substantial assistance to the foreign national in electoral activity, then it has made a judgment of value—the value to it of what the foreign national is providing. The campaign has only so much time and resources, and if it chooses to encourage an activity, it has made a judgment about the benefit. For the foreign national who receives the help, the assistance in perfecting a message for an American audience is invaluable–in other words, “substantial.”
  8. The regulations condition substantial assistance and solicitation liability on “knowingly” engaging in these campaign activities with a foreign national. Actual knowledge that the source is a foreign national satisfies the condition, of course. So does awareness of facts that would lead a reasonable person to reach the conclusion that there is a “substantial probability” that the source is a foreign national. And, in the event of uncertainty, that reasonable person has a duty to inquire, and the failure to conduct a reasonable inquiry constitutes “knowingness” under the rules.
  9. We … don’t know what Donald Trump Jr. told his father about the delegation from Moscow, which arranged the meeting with senior campaign staff by offering campaign assistance. The Trumps deny the father was told. Mr. Bannon who knows how thing work in Trump World is not alone in being skeptical.
  10. Trump Jr. and the senior campaign staff acted with clear knowledge that the individuals engaging with their campaign were closely associated with the Russian government and acting with its authorization.
  11. This was months after [George] Papadopoulos first heard about the emails–the second time that the Russians had, with evident interest in the part of the Trump campaign, offered assistance. The Russians would also have been aware that, four days after their offer of this meeting, Trump announced plans for a press conference at which new disclosures about Secretary Clinton would be made. The president seems to have believed that something sensational for use against Clinton might soon be in hand. The timing suggests that he was alerted to the offer from the Russian government and open to it. Again, the Russians would have taken note.
  12. It is not clear what happened at the meeting, but we do know that the president participated in publicly misrepresenting the nature of the meeting and the identities of those in attendance. [Steve] Bannon has expressed disbelief that anyone would think that the president was not informed in real time about what the Russians came to offer. He suggests that Don Jr. might have brought the Russian visitors to meet with his father.
  13. The campaign dismisses the encounter and argues that the Russians came with material that the campaign senior staff did not think useful. Perhaps so; but on this question, too, we know a good deal less than the special counsel, and a final public accounting of what transpired at the meeting is still to come. But it is well established that the meeting took place, and its significance lies in part in that fact alone. The Russians knew that an American presidential campaign was willing to accept direct support from a foreign government.
  14. Later in the year, Don Jr. communicated privately with Wikileaks, the known agent of the Russian government in the distribution of illegally hacked material. Once again, he confirmed the importance the campaign attached to these disclosures. He accepted from WikiLeaks a link for general distribution that would facilitate press access to the emails of supposedly highest interest. Fifteen minutes later, picking up on the theme that no one should overlook the importance of this email cache, his father tweeted outa complaint that the press was failing to report more thoroughly about this material. Another two days later, Don Jr. tweeted out the link provided by WikiLeaks. Did Trump Sr. learn about the WikiLeaks communications from his son and act on the specific request that he help in promoting the emails? And, of course, by October, the president was appealing openly to the Russians to locate and disseminate deleted Clinton emails.
  15. These known facts support a case that the Trump campaign knowingly solicited the Russian government’s support and gave the Kremlin “substantial assistance” in achieving its electoral aims. (1)The solicitation theory draws strength from the communications between the Trump campaign and the Russian government intermediaries, and from the surrounding circumstances. The Russian government probed for the campaign’s expression of interest in the emails; the Trump campaign left little doubt that it was interested. In fact, the exchanges between the Trump campaign and the emissaries from Moscow constitute an explicit statement of that interest in the “thing of value” the Russians claimed to have. … Moreover, the “thing of value” the Russians were peddling remained the same over the course of the year. The purloined emails were not a one-time gift to the campaign. First came the DNC material, then the Podesta stolen emails, and WikiLeaks spread them out over time, in a series of disclosures. The entire course of dealing between the campaign, the Russians and WikiLeaks reflects on the campaign’s part an ongoing strategic commitment to these revelations, and its active assistance to the Russians in using them to maximum effect. The solicitation itself did not take place on just one occasion but was confirmed over time.
  16. “Substantial assistance” is not hard to plead on these facts, coupled with those that may yet come in response to the clear and pending questions. The campaign knowingly encouraged the Russians and Wikileaks at every turn. It was helpful enough that the nominee, rather than denouncing this intervention, publicly applauded it. His tweets and those of his son were also beneficial to the Russian cause. … The point is that the Russians and the campaign were working together, sharing information toward the achievement of a shared goal, and the alliance they forged was unquestionably advantageous to the Kremlin.