Reports that Matter

Report on the Investigation into Russian Interference in the 2016 Presidential Election · 2019

Campaign Finance

Section 42 of 102

Campaign Finance

Several areas of the Office's investigation involved efforts or offers by foreign nationals to provide negative information about candidate Clinton to the Trump Campaign or to distribute that information to the public, to the anticipated benefit of the Campaign. As explained below, the Office considered whether two of those efforts in particular—the June 9, 2016 meeting at Trump Tower and WikiLeaks's dissemination of hacked emails—constituted prosecutable violations of the campaign-finance laws. The Office determined that the evidence was not sufficient to charge either incident as a criminal violation.

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Overview Of Governing Law

"[T]he United States has a compelling interest . . . in limiting the participation of foreign citizens in activities of democratic self-government, and in thereby preventing foreign influence over the U.S. political process." Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011) (Kavanaugh, J., for three-judge court), aff'd, 565 U.S. 1104 (2012). To that end, federal campaign-finance law broadly prohibits foreign nationals from making contributions, donations, expenditures, or other disbursements in connection with federal, state, or local candidate elections, and prohibits anyone from soliciting, accepting, or receiving such contributions or donations. As relevant here, foreign nationals may not make—and no one may "solicit, accept, or receive" from them—"a contribution or donation of money or other thing of value" or "an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election." 52 U.S.C. § 30121(a)(1)(A), (a)(2).1283 Campaign-finance law also places financial limits on contributions, 52 U.S.C. § 30116(a), and prohibits contributions from corporations, banks, and labor unions, 52 U.S.C. § 30118(a); see Citizens United v. FEC, 558 U.S. 310, 320 (2010). Because the conduct that the Office investigated involved possible electoral activity by foreign nationals, the foreign-contributions ban is the most readily applicable provision. The term "contribution," which is used throughout the campaign-finance law, "includes" "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office." 52 U.S.C. § 30101(8)(A)(i). It excludes, among other things, "the value of [volunteer] services." 52 U.S.C. § 30101(8)(B)(i).

Foreign nationals are also barred from making "an expenditure, independent expenditure, or disbursement for an electioneering communication." 52 U.S.C. § 30121(a)(1)(C). The term "expenditure" "includes" "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." 52 U.S.C. § 30101(9)(A)(i). It excludes, among other things, news stories and non-partisan get-out-the-vote activities. 52 U.S.C. § 30101(9)(B)(i)-(ii). An "independent expenditure" is an expenditure "expressly advocating the election or defeat of a clearly identified candidate" and made independently of the campaign. 52 U.S.C. § 30101(17). An "electioneering communication" is a broadcast communication that "refers to a clearly identified candidate for Federal office" and is made within specified time periods and targeted at the relevant electorate. 52 U.S.C. § 30104(f)(3).

The statute defines "foreign national" by reference to FARA and the Immigration and Nationality Act, with minor modification. 52 U.S.C. § 30121(b) (cross-referencing 22 U.S.C. § 611(b)(1)-(3) and 8 U.S.C. § 1101(a)(20), (22)). That definition yields five, sometimes- overlapping categories of foreign nationals, which include all of the individuals and entities relevant for present purposes—namely, foreign governments and political parties, individuals outside of the U.S. who are not legal permanent residents, and certain non-U.S. entities located outside of the U.S. A "knowing[] and willful[]" violation involving an aggregate of $25,000 or more in a calendar year is a felony. 52 U.S.C. § 30109(d)(1)(A)(i); see Bluman, 800 F. Supp. 2d at 292 (noting that a willful violation will require some "proof of the defendant's knowledge of the law"); United States v. Danielczyk, 917 F. Supp. 2d 573, 577 (E.D. Va. 2013) (applying willfulness standard drawn from Bryan v. United States, 524 U.S. 184, 191-92 (1998)); see also Wagner v. FEC, 793 F.3d 1, 19 n.23 (D.C. Cir. 2015) (en banc) (same). A "knowing[] and willful[]" violation involving an aggregate of $2,000 or more in a calendar year, but less than $25,000, is a misdemeanor. 52 U.S.C. § 30109(d)(1)(A)(ii).

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Application to June 9 Trump Tower Meeting

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government's substantial burden of proof on issues of intent ("knowing" and "willful"), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that "the admissible evidence will probably be sufficient to obtain and sustain a conviction." Justice Manual § 9-27.220.

In brief, the key facts are that, on June 3, 2016, Robert Goldstone emailed Donald Trump Jr., to pass along from Emin and Aras Agalarov 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." The email described this as "very high level and sensitive information" that is "part of Russia and its government's support to Mr. Trump-helped along by Aras and Emin." Trump Jr. responded: "if it's what you say I love it especially later in the summer." Trump Jr. and Emin Agalarov had follow-up conversations and, within days, scheduled a meeting with Russian representatives that was attended by Trump Jr., Manafort, and Kushner. The communications setting up the meeting and the attendance by high-level Campaign representatives support an inference that the Campaign anticipated receiving derogatory documents and information from official Russian sources that could assist candidate Trump's electoral prospects.

This series of events could implicate the federal election-law ban on contributions and donations by foreign nationals, 52 U.S.C. § 30121(a)(1)(A). Specifically, Goldstone passed along an offer purportedly from a Russian government official to provide "official documents and information" to the Trump Campaign for the purposes of influencing the presidential election. Trump Jr. appears to have accepted that offer and to have arranged a meeting to receive those materials. Documentary evidence in the form of email chains supports the inference that Kushner and Manafort were aware of that purpose and attended the June 9 meeting anticipating the receipt of helpful information to the Campaign from Russian sources.

The Office considered whether this evidence would establish a conspiracy to violate the foreign contributions ban, in violation of 18 U.S.C. § 371; the solicitation of an illegal foreign-source contribution; or the acceptance or receipt of "an express or implied promise to make a [foreign-source] contribution," both in violation of 52 U.S.C. § 30121(a)(1)(A), (a)(2). There are reasonable arguments that the offered information would constitute a "thing of value" within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government's burden to prove beyond a reasonable doubt that these individuals acted "willfully," i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(1)(A)(i).

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Thing-of-Value Element

The phrases "thing of value" and "anything of value" are broad and inclusive enough to encompass at least some forms of valuable information. Throughout the United States Code, these phrases serve as "term[s] of art" that are construed "broad[ly]." United States v. Nilsen, 967 F.2d 539, 542 (11th Cir. 1992) (per curiam) ("thing of value" includes "both tangibles and intangibles"); see also, e.g., 18 U.S.C. §§ 201(b)(1), 666(a)(2) (bribery statutes); id. § 641 (theft of government property). For example, the term "thing of value" encompasses law enforcement reports that would reveal the identity of informants, United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979); classified materials, United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991); confidential information about a competitive bid, United States v. Matzkin, 14 F.3d 1014, 1020 (4th Cir. 1994); secret grand jury information, United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985); and information about a witness's whereabouts, United States v. Sheker, 618 F.2d 607, 609 (9th Cir. 1980) (per curiam). And in the public corruption context, "'thing of value' is defined broadly to include the value which the defendant subjectively attaches to the items received." United States v. Renzi, 769 F.3d 731, 744 (9th Cir. 2014) (internal quotation marks omitted).

Federal Election Commission (FEC) regulations recognize the value to a campaign of at least some forms of information, stating that the term "anything of value" includes "the provision of any goods or services without charge," such as "membership lists" and "mailing lists." 11 C.F.R. § 100.52(d)(1). The FEC has concluded that the phrase includes a state-by-state list of activists. See Citizens for Responsibility and Ethics in Washington v. FEC, 475 F.3d 337, 338 (D.C. Cir. 2007) (describing the FEC's findings). Likewise, polling data provided to a campaign constitutes a "contribution." FEC Advisory Opinion 1990-12 (Strub), 1990 WL 153454 (citing 11 C.F.R. § 106.4(b)). And in the specific context of the foreign-contributions ban, the FEC has concluded that "election materials used in previous Canadian campaigns," including "flyers, advertisements, door hangers, tri-folds, signs, and other printed material," constitute "anything of value," even though "the value of these materials may be nominal or difficult to ascertain." FEC Advisory Opinion 2007-22 (Hurysz), 2007 WL 5172375, at *5.

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These authorities 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, 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. Such an interpretation could have implications beyond the foreign-source ban, see 52 U.S.C. § 30116(a) (imposing monetary limits on campaign contributions), and raise First Amendment questions. Those questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues.

Willfulness

Even assuming that the promised "documents and information that would incriminate Hillary" constitute a "thing of value" under campaign-finance law, the government would encounter other challenges in seeking to obtain and sustain a conviction. Most significantly, the government has not obtained admissible evidence that is likely to establish the scienter requirement beyond a reasonable doubt. To prove that a defendant acted "knowingly and willfully," the government would have to show that the defendant had general knowledge that his conduct was unlawful. U.S. Department of Justice, Federal Prosecution of Election Offenses 123 (8th ed. Dec. 2017) ("Election Offenses"); see Bluman, 800 F. Supp. 2d at 292 (noting that a willful violation requires "proof of the defendant's knowledge of the law"); Danielczyk, 917 F. Supp. 2d at 577 ("knowledge of general unlawfulness"). "This standard creates an elevated scienter element requiring, at the very least, that application of the law to the facts in question be fairly clear. When there is substantial doubt concerning whether the law applies to the facts of a particular matter, the offender is more likely to have an intent defense." Election Offenses 123.

On the facts here, the government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful. The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context. The government does not have strong evidence of surreptitious behavior or efforts at concealment at the time of the June 9 meeting. While the government has evidence of later efforts to prevent disclosure of the nature of the June 9 meeting that could circumstantially provide support for a showing of scienter, see Volume II, Section II.G, infra, that concealment occurred more than a year later, involved individuals who did not attend the June 9 meeting, and may reflect an intention to avoid political consequences rather than any prior knowledge of illegality. Additionally, in light of the unresolved legal questions about whether giving "documents and information" of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.

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Difficulties in Valuing Promised Information

The Office would also encounter difficulty proving beyond a reasonable doubt that the value of the promised documents and information exceeds the $2,000 threshold for a criminal violation, as well as the $25,000 threshold for felony punishment. See 52 U.S.C. § 30109(d)(1). The type of evidence commonly used to establish the value of non-monetary contributions—such as pricing the contribution on a commercial market or determining the upstream acquisition cost or the cost of distribution—would likely be unavailable or ineffective in this factual setting. Although damaging opposition research is surely valuable to a campaign, it appears that the information ultimately delivered in the meeting was not valuable. And while value in a conspiracy may well be measured by what the participants expected to receive at the time of the agreement, see, e.g., United States v. Tombrello, 666 F.2d 485, 489 (11th Cir. 1982), Goldstone's description of the offered material here was quite general. His suggestion of the information's value—i.e., that it would "incriminate Hillary" and "would be very useful to [Trump Jr.'s] father"—was non- specific and may have been understood as being of uncertain worth or reliability, given Goldstone's lack of direct access to the original source. The uncertainty over what would be delivered could be reflected in Trump Jr.'s response ("if it's what you say I love it") (emphasis added).

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting.

Application to WikiLeaks and Roger Stone

The Office also considered whether WikiLeaks and anyone connected to the Trump Campaign had liability in connection with WikiLeaks's months-long releases of stolen emails and other documents, possibly with the aim of influencing the 2016 presidential election, described in Volume I, Section III, supra. The Office explored whether WikiLeaks's actions could constitute a prohibited "expenditure," 52 U.S.C. § 30121(a)(1)(C), which "includes" "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," 52 U.S.C. § 30101(9)(A)(i), but excludes, among other things, "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate; news stories and non-partisan get-out-the-vote "activities." 52 U.S.C. § 30101(9)(B)(i) and (ii).

The Office concluded that substantial questions exist about whether the release of emails could be treated as an "expenditure," whether the government could establish willfulness, and whether prosecution of this conduct would be subject to a First Amendment defense. In combination, those factors created sufficient doubt that the Office could obtain and sustain a conviction based on WikiLeaks's conduct. There is also insufficient evidence at the present time to establish beyond a reasonable doubt that Roger Stone or any other persons associated with the Campaign coordinated with WikiLeaks on the release of the emails, which alone would preclude prosecution of them for the WikiLeaks-related conduct even if WikiLeaks had violated campaign-finance law. Finally, and in any event, the Office took into consideration several of the legal uncertainties discussed above with respect to June 9.

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Questions Over Whether WikiLeaks's Activities Are Covered by the Campaign-Finance Laws

Substantial questions exist about whether WikiLeaks's activity in posting documents is covered by the campaign-finance laws. Threshold questions include whether stolen emails constitute "anything of value" as used in the statute defining the term "expenditure," and whether the posting of documents online qualifies as a "gift" or as any of the other types of transactions described in that statute ("purchase, payment, distribution, loan, advance, deposit"). Assuming that they do, two other hurdles would pose challenges.

First, in Bluman, a three-judge court held that the ban on foreign-national expenditures (in contrast to contributions or donations) is limited to "expenditures to expressly advocate the election or defeat of a political candidate," i.e., "'express campaign speech' or its 'functional equivalent.'" 800 F. Supp. 2d at 284 (quoting FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 456 (2007) (WRTL) (opinion of Roberts, C.J.)). That standard would require more than that the posted emails were intended to influence elections and would have that effect. WRTL, 551 U.S. at 465-470; see id. at 470-475. Rather, they must be "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Id. at 469-470; cf. 11 C.F.R. § 100.22 (defining the term "expressly advocating" in the campaign-finance laws as using certain electoral words or phrases or "[w]hen taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s)"). If the standard articulated in that decision governs, then it is unlikely that the distribution of emails, divorced from messaging that expressly advocates the election or defeat of a candidate—through particular magic words or the functional equivalent—would satisfy it.

Second, pursuant to its authority to "prescribe rules, regulations, and forms to carry out" the campaign-finance laws, 52 U.S.C. § 30111(a)(8); see Buckley v. Valeo, 424 U.S. 1, 110 (1976) (per curiam), the FEC has promulgated regulations that exclude most "internet activity" from the category of expenditures. 11 C.F.R. § 100.155; see also 11 C.F.R. § 100.94 (similar for "contributions"). That regulation generally excludes posting, hosting, blogging, and similar internet activities, where they are "uncompensated." Id. That exclusion may well cover WikiLeaks's activities.

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Willfulness

As discussed, to establish a criminal campaign-finance violation, the government must prove that the defendant acted "knowingly and willfully." 52 U.S.C. § 30109(d)(1)(A)(i). That standard requires proof that the defendant knew generally that his conduct was unlawful. Election Offenses 123. Given the uncertainties noted above, the "willfulness" requirement would pose a substantial barrier to prosecution.

Constitutional Considerations

Finally, the First Amendment could pose constraints on a prosecution. Even if WikiLeaks, as a non-citizen abroad, could not assert First Amendment rights, see DKT Mem'l Fund Ltd. v. Agency for Int'l Dev., 887 F.2d 275, 284 (D.C. Cir. 1989); Bahlul v. United States, 840 F.3d 757, 797 (D.C. Cir. 2016) (en banc) (Millett, J., concurring) ("no governing precedent extends First Amendment protection to speech undertaken by non-citizens on foreign soil"), WikiLeaks could argue that the transmission of information into the United States that did not involve express advocacy implicates the First Amendment rights of American audiences. See Lamont v. Postmaster General, 381 U.S. 301, 305 (1965) (treating limits on mailing propaganda into the United States as "a limitation on the unfettered exercise of the addressee's First Amendment rights"); see also Bluman, 800 F. Supp. 2d at 290 (noting that the court's interpretation of the foreign-expenditure ban "does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues"). Assuming that no coordination with the Campaign occurred, a criminal prosecution of overseas actors providing non-express-advocacy information to American listeners would likely be difficult.

Analysis as to Roger Stone

The Office also considered whether Roger Stone could be prosecuted for any direct or indirect contacts with WikiLeaks about its release of hacked emails for the purpose of influencing the presidential election, and whether any coordination between Stone and WikiLeaks would affect WikiLeaks's criminal exposure. If WikiLeaks's release of documents were conducted in coordination with Stone (or others associated with the Trump Campaign), the activity would arguably constitute a "contribution," rather than an "expenditure." Cf. 52 U.S.C. § 30116(a)(7)(B)(i) ("For purposes of this subsection . . . expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate."). That characterization would potentially render Bluman's express-advocacy limitation inapplicable (because Bluman had applied that interpretation only to expenditures made independent of a campaign) and would significantly alleviate the First Amendment concerns identified above (because coordinated election activity would implicate the compelling interest in preventing foreign participation in the U.S. political process and in avoiding quid pro quo corruption or its appearance). See Citizens United v. FEC, 558 U.S. 310, 357 (2010); FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 444-60 (2001); Bluman, 800 F. Supp. 2d at 288.

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The Office did not pursue that theory, however, because the investigation did not identify sufficient credible evidence that would establish that Stone coordinated with WikiLeaks or that any contacts with WikiLeaks were attributable to the Campaign. See Volume I, Section III.D.1, supra. While the Office cannot exclude the possibility of coordination between Stone and WikiLeaks or that additional evidence could come to light on that issue, the investigation did not obtain admissible evidence likely to meet the government's burden to prove facts establishing such coordination beyond a reasonable doubt.

In any event, even if the Office could establish coordination, arguments premised on a showing of coordination would not address the questions discussed above about whether electronic documents posted on the internet are things of value covered by the campaign-finance laws. Nor would it address the FEC's regulation providing that uncompensated internet activity is not a contribution, even if done in coordination with a campaign, see 11 C.F.R. § 100.94. Those reasons for questioning the applicability of the campaign-finance laws to the facts at issue would similarly make it difficult to establish the general knowledge of illegality necessary to prove a willful violation. See Election Offenses 123.