Just Security (Op-Ed): The “Quid” is a Crime: No Need to Prove “Pro Quo” in Ukrainegate
Just Security (Op-Ed): The “Quid” is a Crime: No Need to Prove “Pro Quo” in Ukrainegate
Late last week allegations surfaced in The Wall Street Journal that during a July 25th phone call President Donald Trump had repeatedly pressured Ukraine’s President Volodymyr Zelensky to investigate Hunter Biden and 2020 presidential candidate Joe Biden. If these allegations are true, some of which were admitted by the President himself on Sunday, it looks like Trump has violated federal campaign finance laws. Again. Trump’s personal attorney Rudy Giuliani seems to be on the hook for violations, too.
During the July phone call, Trump reportedly urged Zelensky “about eight times” to work with Rudy Giuliani to probe Giuliani’s own assertions that Joe Biden had acted improperly as vice president to curb an investigation of a gas company for which Hunter Biden was a director. Trump’s request to Zelensky is reportedly part of a U.S. intelligence community whistle-blower complaint, tied to allegations that Trump may have delayed a military aid package as leverage on Ukraine’s president.
Federal law prohibits a foreign national from directly or indirectly making a “contribution or donation of money or other thing of value” in connection with a U.S. election, and prohibits a person from soliciting, accepting or receiving such a contribution or donation from a foreign national. Federal law defines “contribution” to include “any gift … of money or anything of value made by any person for the purpose of influencing any election for Federal office.” And the FEC by regulation defines “solicit” to mean “to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”
And that’s all the law requires. Whether or not Ukraine came through, whether or not the communications involved a quid pro quo, the solicitation of a thing of value from the Ukraine President in connection with a U.S. election could be a federal crime.
President Should Have Learned His Lesson—But Didn’t
President Trump and Giuliani are no strangers to these campaign finance laws. Special Counsel Robert Mueller investigated the Trump campaign for possible illegal solicitation of contributions from Russian intelligence assets during the 2016 election. As I explained in a summary of a section of the Mueller Report that I wrote for Just Security, Mueller weighed charging Trump Campaign officials with crimes in connection with a June 2016 Trump Tower meeting, in which Donald Trump Jr., Paul Manafort and Jared Kushner met with several Russian nationals to follow up on an “offer” from Russia’s “Crown prosecutor” to “the Trump campaign” of “official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to [Trump Jr.’s] father” as “part of Russia and its government’s support to Mr. Trump.”
Mueller concluded there were reasonable arguments that the offered opposition research would constitute a “thing of value”—i.e., a “contribution” under the law. However, Mueller determined that the government would not be likely to obtain a conviction for two reasons.
First, to establish a criminal campaign-finance violation, the government must prove beyond a reasonable doubt that the defendant acted “knowingly and willfully”—i.e., that the defendant knew generally that his conduct was unlawful. Yes, this peculiar area of election law allows defendants to escape liability for ignorance of the law. And Mueller concluded he lacked evidence likely to prove beyond a reasonable doubt that Trump campaign officials acted with knowledge that their conduct was illegal.
Second, Mueller concluded the government would have difficulty proving that the value of the promised information exceeded the $2,000 threshold for a criminal violation and/or the $25,000 threshold for felony punishment. Evidence of the value of the offered information would likely be unavailable, especially given that the offered information apparently was not produced.
Given the need, in a criminal prosecution, to establish that Trump campaign officials knew their activities were illegal, combined with the presumed difficulty of establishing the monetary value of information that was offered, but never produced, Mueller decided not to pursue criminal campaign-finance charges for Trump campaign officials relating to the June 2016 Trump Tower meeting.
Although team Trump’s presumed ignorance of campaign finance laws worked in its favor in the context of the Mueller investigation, President Trump and Rudy Giuliani can’t claim ignorance now. Both have been on notice, at the very least since the conclusion of the Mueller investigation, that it’s illegal for any person to solicit anything of value from a foreign national to influence a U.S. election.
Notwithstanding Trump’s undeniable understanding that it’s illegal to solicit anything of value from a foreign national to influence a U.S. election, Mueller’s decision not to prosecute campaign finance violations stemming from the Trump Tower meeting only seems to have emboldened the President.
In June of this year, President Trump shockingly admitted that if a foreign national offered him opposition research on a political opponent, he “think[s he’d] take it” and he might not report it to the FBI. In the same interview, Trump said that FBI Director Christopher Wray is “wrong” in his assertion that such efforts by foreign nationals to interfere in a U.S. election should be reported to the FBI.
On June 13, The Chair of the Federal Election Commission responded with an unequivocal warning: “Let me make something 100% clear to the American public and anyone running for public office: It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election. This is not a novel concept.”
Through the Mueller investigation, President Trump should have learned the legal risks of seeking foreign support for his election efforts. Instead, he seems only to have learned that he can get away with it.
Will Anyone Hold Trump Accountable?
Several institutions and mechanisms exist to ensure that no one—not even the President of the United States—is above our laws. But to date, they’ve all failed us.
Department of Justice
The Mueller investigation has ended with no criminal charges filed against President Trump for obstruction of justice or other possible crimes. A separate Department of Justice (DOJ) investigation into possible Trump crimes related to Stormy Daniels and Karen McDougal hush money payments before the 2016 election has also ended without explanation and without criminal charges filed against President Trump—despite the fact that he is clearly identifiable as the unindicted co-conspirator (Individual-1) in the guilty plea in the case of his former personal attorney Michael Cohen.
Special Counsel Mueller did not make a decision of whether to initiate or decline a prosecution of President Trump. He cited a DOJ Office of Legal Counsel opinion finding that indictment of a sitting President would undermine the Executive Branch’s capacity to govern in violation of “the constitutional separation of powers.” The DOJ was likely following the same opinion in closing down the hush payment investigation without charging the president.
However, unlike President Trump who’s been shielded from prosecution by this DOJ opinion, Rudy Giuliani could be prosecuted for any crimes he’s committed. And President Trump could be criminally prosecuted after leaving office if the statute of limitations for his possible crimes (5 years for campaign finance crimes) has not yet run out. A sitting president can also be named as an unindicted co-conspirator (for example, to any crimes committed by Giuliani), just as Nixon was.
Federal Election Commission
The Federal Election Commission (FEC) has legal authority to enforce campaign finance laws with civil penalties—i.e., monetary fines. And unlike criminal prosecution, which requires proof beyond a reasonable doubt that the defendant knew that his conduct was unlawful and that the violation exceeded $2,000, civil enforcement actions by the FEC have no “knowledge” requirement and no monetary threshold.
However, the FEC is currently without a quorum and, consequently, is unable to initiate investigations and/or enforcement actions. Presumably the President will someday appoint, and the Senate will confirm, new FEC commissioners to give the commission a quorum once again. But knowing the FEC may then investigate his possible campaign finance violations certainly won’t incentivize the president to reconstitute the FEC anytime soon if ever!
In July, Common Cause published The Case for an Impeachment Inquiry of President Trump, laying out why the U.S. House of Representatives should start an impeachment investigation of President Trump. Earlier this month, the House Judiciary Committee approved a resolution formally launching an impeachment investigation.
Among the grounds justifying an impeachment investigation detailed in the Common Cause report are possible campaign finance violations and abuses of power. Last week’s revelation of Trump’s pressure on Ukraine’s president is powerful fuel for the impeachment inquiry fire.
However, Republicans in both the House and the Senate have put party before country, refusing to support an impeachment inquiry in the House and vowing to quickly quash any articles of impeachment in the Senate. And even in the House, where a majority of Democrats support an impeachment inquiry, House Speaker Nancy Pelosi has not supported impeaching President Trump and, instead, has recently suggested passing a law authorizing the DOJ to indict sitting presidents. How that legislation would overcome a presidential veto or, if passed, change the Justice Department’s claim to a constitutional prohibition on such indictments is most unclear.
With the Department of Justice, the Federal Election Commission and Congress refusing to stop him, it’s no wonder that President Trump has escalated his seemingly-illegal conduct. Americans have long prided themselves on a belief that no one is above our nation’s laws. President Trump seems determined to prove us wrong.