Trump’s “Preposterous ‘Collusion is Not a Crime’ Defense”

This defense is vintage “straw person” reasoning. It is correct that federal campaign finance laws, which prohibit activity undertaken by foreign nationals to influence elections, do not refer to collusion. That does not mean, of course, that they do not directly address activities of the kind in which the Trump campaign reportedly engaged in encouraging and supporting the Russian electoral intervention of 2016. It is perhaps precisely because of the sweep of the ban on foreign national campaign activity—and American collaboration with it—that Trump and his lawyers are eager to direct attention elsewhere.

When Giuliani states “I have been sitting here looking in the federal code trying to find collusion as a crime,” the disingenuousness of his position is plain. He is looking for what does not exist to enable him to skip over what he is eager to ignore and avoid discussing.

The untenable position Giuliani is staking out is well illustrated by the following questions: Did the Trump campaign ever consult lawyers on the legal implications of planned or proposed Russian contacts? If not, why not? And had the campaign done so, what would a lawyer have advised about the legal risks? Any reasonably experienced, competent campaign counsel would say that he or she would never have advised the campaign management that it was legal to take up the Russian offer and hold the meeting. Nor would any such lawyer have given a green light to other points of contacts between the campaign and Russia, or to dodgy maneuvers like the president’s public appeal to the Russians to locate deleted Clinton emails.

A presidential campaign normally talks to lawyers about complex, unusual or obviously sensitive plans or projects. The campaign’s goal is typically to seek counsel’s blessing or advice on how to work ingeniously around legal obstacles to safely accomplish the desired objective. In the best of all worlds, the campaign management identifies a course of action that it can pursue with the confidence that, if challenged, its lawyers can provide a defense.

What hope did the Trump campaign have of help from its lawyers in maximizing political support from a foreign government? In the case of the Russian travel to New York in the summer of 2016 to provide derogatory information about Secretary Clinton, the issue would have been clear and the legal path closed.

The ban on foreign national involvement in federal elections is exceptionally broad. It applies to any spending to affect an election: The prohibition applies to “contributions,” “expenditures,” “donations,” and “disbursements.” A “contribution” for this purpose includes any “thing of value.” The rules reach “promises” of such spending whether express or “implied,” and to campaign spending provided either directly or “indirectly.”

This basic prohibition extends even to foreign national “participation” in the decisions that a U.S. national makes about election-related spending. It is stringent enough that it has shaped the legal requirements that the American subsidiary of a foreign corporation must satisfy in setting up a political action committee. The American management of the subsidiary can establish a political-action committee to make contributions to U.S. candidates, but only with U.S. national funding—and without any involvement from the foreign nationals a the parent company. A foreign national cannot so much as advise on how the PAC money would be spent. For foreign management to suggest that the U.S. PAC consider a contribution for candidate X is a violation of the law. A U.S. national who solicits this guidance is providing illegal substantial assistance to unlawful foreign national activity.

The Federal Election Commission for some time even equivocated on the question of whether a foreign national could volunteer personal services to a campaign. It eventually held that because the law exempts volunteer personal services from the scope of regulated contributions, foreign nationals could provide them. The standard example is the foreign national entertainer performing at a fundraising event: He or she cannot spend any money to support the event, including funding the transportation of equipment, travel or lodging expenses for personal staff or other band members.

Congress has enacted and reenacted the foreign-national prohibition in 1966, 1974 and 2002, seeking on each occasion to strengthen it. So the lawyer reviewing a contact between the campaign and a foreign national—particularly a foreign national with apparent ties to a foreign government—would understand that the rules in question are not among the backwater provisions of the law, under-enforced relics of the aged and discredited regulations. The lawyer would also be familiar with the congressional investigations and criminal investigations that arose out of allegations that China developed and implemented a plan to influence the course of the 1996 presidential election. And, finally, he or she would keep in mind that the Supreme Court recently affirmed in Bluman v. Federal Election Commission the constitutionality of these draconian legal controls.

Federal election law pairs the these prohibitions on foreign national electoral activity with restrictions on the behavior of the would-be U.S. beneficiaries. U.S. nationals, including campaigns, cannot “substantially assist” a foreign national in any of these activities, and Americans cannot solicit, accept or receive any such illegal foreign-national support. Viewed together, these prohibited activities— assistance, solicitation, acceptance, or receipt—certainly capture the essence of what some might understand by references to “collusion.”

From the standpoint of a competent lawyer, the 2016 Trump Tower meeting with Kremlin emissaries directly implicates these rules. The Russians did not merely offer information, plucked from the sky: In the first place, they had to have procured it. To have done so would normally require the expenditure of funds “in connection with” a federal election: opposition material assembled on a U.S. presidential candidate. Certainly the Russian traveling party spent money to travel to the United States for the meeting. Both the material they proposed to provide and the expenses associated with creating and arranging to deliver it raise the serious question of in-kind contributions to the campaign. Moreover, the hypothetical campaign lawyer would have to be concerned that urging the campaign to invest its own resources in a specific line of attack on Hillary Clinton would constitute illegal “participation” in the campaign’s decision-making on its own spending.

In addition, the lawyer would consider that any meeting with a foreign government to discuss mutual goals in winning an election could constitute an illegal “solicitation” of unlawful foreign national spending.. The “acceptance” of the meeting could be such a solicitation if the foreign national dangled the possibility of a benefit and the U. S. campaign, in pursuing the discussion, made clear that it was in the market and open for business. The willingness to discuss Russian government support on this one occasion could be an additional ground for exposure under the solicitation ban. By taking the meeting, the campaign would be signaling an interest in whatever the foreign government might have to offer in the future. How much exposure the campaign incurred on this score could depend in part on what was said at the meeting. But it is yet another issue the lawyer would identify in the Russian offer and the American openness to entertaining it.

The campaign counsel would know well that in this area, there is little room for maneuver, and for the standard exploration of “loopholes.” Foreign nationals have no constitutional rights to influence U.S. elections, and so the U.S. national supporting an illegal Russian national scheme would have limited First Amendment rights to claim in its own defense. To take one example, it would not help the American manager of a PAC to appeal to “freedom of speech” in defending a conversation with a foreign national colleague about the choice of candidates for PAC support. It is highly unlikely that a lawyer would conclude that, after all this effort over the years, Congress had designed a statute somehow reasonably interpreted to prevent an individual foreign national from giving a $25 contribution to a campaign but failing, despite all these detailed legal restrictions, prohibit a relationship like the one that the Trump campaign seems to have fashioned with the Putin regime.

All these questions would compel the lawyer to advise in strongest terms against campaign representatives agreeing to meet with a Russian government delegation to hear the “dirt” it claimed to have. And this is the outcome even without bringing into the discussion the lawyer’s option under Rule 2.1 of the American Bar Association’s Model Rules of Professional Conduct to advise on the “political” or “moral” implications of agreeing to the meeting. It is the legal judgment that the lawyer would be virtually required to reach and convey to the client. What does or does not constitute “collusion” would have nothing to do with the legal analysis.

These are only the campaign finance law issues raised by the Trump Tower meeting. There are others presented by the campaign’s course of conduct with the Russians, such as the signaling to the Russians through WikiLeaks—or directly from the candidate—that their hacking and carefully timed distribution of stolen material was welcome and valuable to the Trump candidacy. Evidence of this encouragement and guidance could support a case of illegal “substantial assistance” to the Russian electoral intervention. This assistance was, by any measure, substantial: The Russians were operating with the advantage of direct discussion with the campaign, such as the one at Trump Tower, and other channels of communication that could have guided their understanding of how the campaign might benefit from Russia’s use of online political messaging and the release of stolen materials. A lawyer consulted on actions like these would not have to strain to spot the campaign finance issues in this political alliance.

Of course, the campaign counsel lawyers could know only what the campaign understood of the extent of the Russian electoral activity. They would not have had the benefit of the detailed picture that the Mueller indictments have drawn of the wide-ranging political program directed from the Kremlin and managed by Russian intelligence agencies. But what they would have known would have been more than enough to detect the serious legal issues under federal campaign finance law. Some lawyers in that position might even have responsibly advised that the campaign report the Russian offer to U.S. legal authorities. Even those who rejected that option would have appreciated that the campaign needed to reject the overture from Moscow and create at least an internal record that it had done so.

But then again, Trump and his senior campaign team may not have asked the lawyers for their opinion. They could well have had their reasons: The most obvious and troubling of the possible explanations is that, anticipating a negative response, they may have chosen to proceed without the advice of counsel to pursue victory with Russian help. Then the lawyers would have been consulted only after the fact, to come up with whatever public defense they could devise. This is the road that may have brought the Trump team to this moment—that is, to Rudy Giuliani and the absurd “collusion is not a crime” theory of the president’s case.