Appearing on CNN's State of the Union yesterday, Rudy Giuliani made some valid points about the June 9, 2016, meeting at Trump Tower between a Russian lawyer offering "dirt" on Hillary Clinton and top Trump campaign figures. But as usual, the president's lawyer overstated his case and spoke out of both sides of his mouth.
Giuliani told CNN's Jake Tapper "there's nothing wrong with taking information from Russians" who may have obtained it illegally, although he would have advised against it "just out of [an] excess of caution." Giuliani is right that there was nothing clearly criminal about the meeting, which figures prominently in the Mueller report. But "nothing wrong" goes too far, especially in light of Trump's subsequent efforts to disguise the nature of the meeting, which included his son, son-in-law, and campaign chairman. It seems clear that Trump himself thought the meeting would look bad and reinforce the impression that the Russian government helped him win the presidential election.
"There's no crime," Giuliani said. "You're assuming that the giving of information is a campaign contribution. Read the report carefully. The report says we can't conclude that, because the law is pretty much against that."
It would be more accurate to say it's doubtful whether such information would qualify as an illegal foreign campaign contribution. Such fuzziness is a hallmark of campaign finance rules and a strong argument against concluding that Donald Trump Jr. et al. knowingly broke the law by agreeing to the meeting, during which no actual derogatory information about Clinton materialized.
The relevant statutory provision applies broadly to "anything of value." Under Federal Election Commission regulations, that category includes at least some kinds of information, such as "membership lists" and "mailing lists." The Mueller report cites cases in which courts have held that "anything of value" and "thing of value," phrases that appear in other federal statutes dealing with crimes such as bribery and theft of government property, can include intangibles such as "confidential information about a competitive bid" or "law enforcement reports that would reveal the identity of informants."
Those decisions, the report says, "would support the view that candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply. A campaign can be assisted not only by the provision of funds, but also by the provision of derogatory information about an opponent. Political campaigns
frequently conduct and pay for opposition research. A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value."
At the same time, however, "no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law." The report notes that "such an interpretation could have implications beyond the foreign-source ban," such as limits on campaign contributions by Americans, and "raise First Amendment questions."
Giuliani pointed out that Russian hacking of emails from Clinton's campaign chairman and the Democratic National Committee, while illegal, produced accurate, newsworthy information that was widely reported by journalists. "The information that was gleaned and disseminated, every newspaper printed it," he said. "Why did The Washington Post print the information that came from a foreign source, when they knew it was hacked? Aren't they just as wrong for doing that as the campaign wanting to use it?"
To the extent that Giuliani is making an argument about ethics, he is on pretty solid ground. As he noted, political campaigns are always eager to obtain information that can be used against the other side, and they have the same First Amendment right to share that information with the public as news outlets do, even if the information was originally obtained illegally. But Giuliani also implied there is something shady about the practice.
Referring to Sen. Mitt Romney (R-Utah), who on Friday reacted to the Mueller report by saying he was "sickened at the extent and pervasiveness of dishonesty and misdirection by individuals in the highest office in the land, including the President," Giuliani said, "I'd like to take a good look at Romney's campaign and see if there were any immoral or unethical things done by the people working for him that he didn't know about. If there weren't, then it was the only campaign in history, because he's maybe…holier than the holiest one. There's no campaign in history that hasn't done that." It seems to me Giuliani is conceding too much here, since there is nothing "immoral or unethical" about sharing truthful, relevant information about your opponent, regardless of its provenance, as long as you did not commit a crime (such as stealing emails) to obtain it.
The president's critics, of course, argue that Trump Jr. et al. did commit a crime when they agreed to the Trump Tower meeting, even if it did not produce the anticipated "dirt." In that respect, they were situated differently from The Washington Post, which is not a political campaign and therefore is not constrained by the ban on foreign contributions. And the fact that Giuliani says he would have cautioned against the meeting "out of [an] excess of caution" suggests he would have anticipated that legal argument, even if he considered it dubious.
It seems unlikely that the president, who says he was not aware of the meeting when it happened, was well enough informed about campaign finance law to worry about the legal risk. But when news of the meeting broke in July 2017, Trump tried to obscure the motivation for it. "I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign," Trump Jr. said in the original version of his son's public statement, according to the Mueller report. Trump instructed his communications director, Hope Hicks, to excise any reference to such information from the statement, and the version released to the public said the meeting focused "primarily" on Russia's suspended foreign adoption program. "The statement did not mention the offer of derogatory information about Clinton," the Mueller report notes.
Trump's editing of his son's statement does not necessarily indicate he understood the potential legal implications of the meeting. More likely, it was part of his efforts to counter the narrative that he managed to defeat Clinton only because he had the Russian government's help—a claim that, as the Mueller report shows, drove Trump crazy. But it is hard to reconcile Trump's subterfuge with Giuliani's claim that "there's nothing wrong" (as opposed to nothing illegal) "with taking information from Russians." If so, why try to hide it?