The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I noted Wednesday, some people are arguing that Donald Trump Jr. committed a crime by expressing willingness to accept unspecified information that came from the Russian government and that was offered as "part of Russia and its government's support for Mr. Trump." (The incident happened before the hack of the Democratic National Committee was revealed, so there's no indication that Trump Jr. thought that the offered information had been obtained illegally.) The theory is this:
- A federal statute makes it a crime for "a foreign national, directly or indirectly, to make … a contribution or donation of money or other thing of value … in connection with a Federal, State, or local election."
- Politically damaging information, especially deliberately assembled opposition-research-style information, is a "thing of value."
- Therefore, when someone offered the unspecified information to Trump Jr., saying it was "some official documents and information that would incriminate Hillary [Clinton] and her dealings with Russia and would be very useful to your father," and Trump Jr. responded, "if it's what you say I love it," Trump Jr. was soliciting the commission of a crime—the crime of a foreign national making a contribution of a thing of value in connection with a federal election—and such solicitation was itself a crime.
As I argued Wednesday, though, reading "thing of value" to include such politically damaging information would outlaw a broad range of constitutionally protected opposition research. Such a reading would therefore make the statute unconstitutionally overbroad, in violation of the First Amendment; the statute must therefore be read to avoid such an unconstitutional result, by interpreting "thing of value" to exclude such information. Even if a narrower statute—for instance, one focused on speech by foreign governments and not just by foreign nationals—could forbid such communications (and I doubt that it can), this statute cannot be constitutionally read to do so.
But, thinking further about the case, I think there's still more reason to reject the broad reading of "thing of value."
1. First, the same statute bans not just foreigners' "contributions" directly to campaigns, but also "expenditure[s]" of money or "thing[s] of value" by foreigners. Indeed, when it comes to foreigners spending money to buy ads, print leaflets and the like, that equation of contributions and expenditures is well settled: Foreigners can neither contribute money to a candidate nor spend their money to support or oppose a candidate.
And "expenditure" is defined to mean "any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office" (emphasis added). There's that phrase "thing of value" again—if "thing of value" for the purposes of the contribution ban includes giving valuable damaging political information to a campaign, then "anything of value" for purposes of the expenditure ban includes giving such information to anyone else, so long as the gift is intended to influence a federal election.
So, imagine that a foreigner—say, a Turkish businessman—thinks that President Trump did something bad (say, in building a Trump hotel in Turkey). Maybe the bad thing was criminal but not something the Turkish government wants to prosecute, or maybe it was just unsavory even if not criminal. In any case, the Turk assembles the evidence. It's important evidence, which would be valuable for American voters to consider.
Under the "information as thing of value" theory, it would be a crime for the Turk to give the information to the Clinton campaign, since that would be an illegal contribution. (That's the very premise of the argument against Trump Jr. that I'm discussing.)
So instead, he decides to give it to the New York Times, hoping the Times writes about this and gives Trump the comeuppance that (in the Turkish businessman's mind) Trump deserves. Yet that, too, is a crime (again, accepting the thing-of-value theory): The gift of the "thing of value" to the New York Times, done, "for the purpose of influencing [an] election for Federal office" is itself an illegal expenditure.
2. But wait: This doesn't just risk criminal punishment for the foreign businessman. What if a New York Times reporter is approached by the Turk, who wants to set up a meeting, and the reporter says, "if it's what you say I love it"? Then, by the same logic being applied to Trump Jr.'s response, that reporter is committing the crime of soliciting the illegal expenditure—he's encouraging the businessman to illegally give a gift of something of value (information).
It's possible that the reporter could avoid criminality by insisting on paying money for the information (which presumably would have to be the market value of the information, however one calculates this). That would presumably make the transfer not a gift and thus not an expenditure. But checkbook journalism is usually frowned on—yet the no-gifts-of-information reading of the statute would actually require such checkbook journalism.
There is a media exception to the ban on expenditures; that provision defines "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication" as being not an "expenditure" (even though money is spent to publish such material). But, as I read it, that frees media outlets (even foreign-owned ones) to spend their money in speaking about candidates and frees domestic corporate-owned media outlets to speak to candidates about coverage (which might otherwise be an illegal corporate-coordinated expenditure). The media exception doesn't let media outlets solicit "expenditures" by third parties.
3. Relatedly, say that a New York Times reporter calls highly placed people he knows in a foreign government and asks them to pass along any files they have on an American political candidate, assuming they can do so without violating any obligations to their own government. (Say, for instance, that the candidate had been an ambassador, or a secretary of state, and dealt extensively with foreign officials; and the foreign government is willing to report on the candidate's performance.) That, too, would be soliciting the criminal gift of a thing of value (again, accepting the information-about-candidate-as-thing-of-value theory), and thus itself a crime.
4. Now let's turn from foreigners to corporations. Though Citizens United held that corporations are free to make independent expenditures, corporations remain barred from making contributions to federal political candidates. And that prohibition applies—you guessed it—to "anything of value." That means that if the Clinton campaign staff heard that some corporation had assembled information that showed misconduct on Trump's part, and was willing to share it (maybe the corporation was involved in a business relationship gone sour), the staff would be committing a crime by asking for the information: It would be illegally soliciting an illegal campaign contribution of valuable information.
Again, perhaps I'm wrong in my reading of the statutes; please do let me know if that's so. But as I see it, the implications of viewing politically damaging information about a candidate as a "thing of value" regulated by federal campaign finance laws would be extremely broad. Such a reading would end up suppressing a wide range of speech, not just to and by campaigns, but also speech by foreigners to American media outlets or advocacy groups.
It would certainly not be limited to solicitation of hacked material from foreign governments (since, again, there's no evidence that Trump Jr. thought this material was hacked). It wouldn't even be limited to solicitation of any material from foreign governments, since the statute applies equally to all foreigners (except those who are also U.S. citizens or U.S. permanent residents). As I noted, it wouldn't be limited to solicitation of material by campaigns. If read this way, the statute would be unconstitutionally overbroad—so, as a legal matter, the statute ought to be read as not covering such distribution or solicitation of damaging information about a candidate.