Toobin Skeptical of Criminal Campaign Finance Charges Against Trump Campaign (But More Bullish on Obstruction Claims)

New Yorker’s Jeff Toobin:

Does any of this behavior rise to the level of criminality, and, if so, what laws might it have violated? Federal law prohibits political candidates and their advisers from seeking or obtaining contributions from foreign individuals or entities. “Foreigners can’t contribute to federal, state, or local campaigns, and that doesn’t just cover cash contributions,” Kathleen Clark, a professor at the law school of Washington University in St. Louis, told me. “According to the statute, if a campaign solicits a foreigner to give a ‘thing of value’ to a political campaign, that would be illegal as well.”

The argument for a criminal-conspiracy charge based on these exchanges would be that Trump officials, including the candidate, solicited opposition research from Russian interests, and that such research is a “thing of value,” an in-kind contribution, under the law. “There is clearly a market for damaging information about opponents in political campaigns,” Clark said. “While there might be some uncertainty about how exactly to value it, I can’t imagine there would be serious debate about whether information is a thing of value.”

Still, a prosecution along these lines would hardly be straightforward or routine. In the past, criminal cases about solicitation have focussed on cash, so Mueller’s case would rest on a novel interpretation of the law. The status of WikiLeaks also creates a potential obstacle. Federal law contains an exemption for the press; news operations cannot be charged with making illegal campaign contributions by covering a campaign. The Trump campaign—and surely WikiLeaks itself—would likely argue that the organization is a journalistic outlet. It’s worth noting that President Trump’s own Central Intelligence Agency has a different view of WikiLeaks. Mike Pompeo, the director of the C.I.A., said in a speech in April, “It’s time to call out WikiLeaks for what it really is: a non-state hostile intelligence service often abetted by state actors like Russia.”


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