Bob Bauer at Just Security:
In other words, if Mueller’s case for campaign finance violations affected only Russians, there would be no obvious reason to exclude Federal Election Campaign Act violations from the indictment. Russians spent substantial sums to influence an election, as expressly laid out in the charging document, and this is an unambiguous violation of federal law. If, however, Mueller possesses evidence of Americans’ complicity in these violations, he may have decided on a different theory of the campaign finance case that more reliably sweeps in U.S. citizen misconduct.
On the face of it, the law prohibits a U.S. campaign or person from “soliciting” something “of value” from a foreign national, and it bars rendering “substantial assistance” to illegal foreign national spending. It seems clear that the facts known to date implicate these rules. It is also true that there is little precedent and arguably an increased risk of a defense grounded in the “vagueness” of these prohibitions. Some commentators have expressed unease about the constitutional limiting principle that would govern the enforcement of these provisions. I do not share this view, but it is held strongly in some quarters and, therefore, appropriately and respectfully noted.
The Mueller indictment is conceivably one way to solve this problem. It alleges a conspiracy to prevent the FEC from taking up and addressing the regulatory issues, and American co-conspirators may be brought in on any overt act in furtherance of this illegal scheme. Any U.S. citizen who intentionally supported the Russian electoral intervention could be liable. Examples would include U.S. citizens engaged in conversations like those in Trump Tower in summer of 2016, or Don, Jr.’s communications with WikiLeaks about the timing of the release of stolen emails. The conspiracy to defraud the United States could also envelop any Americans who helped cover the Russians’ illegal electoral program by lying to federal authorities about the campaign’s Russian contacts.
The special counsel may well have concluded that he could deal with any instances of U.S. citizen complicity without getting bogged down in unresolved questions of what constitutes “soliciting” support or providing the foreign national with “substantial assistance.” In sum, Mr. Mueller and his team may have adopted this theory of the case to facilitate the charging of Americans who helped their Russian allies interfere in the 2016 election. This is most plausible solution to the Mueller indictment mystery.