“Russia may sabotage the next election, too. What will Trump and Republicans do about it?”

Greg Sargent:

The Democratic Congressional Campaign Committee, which oversees House races, has issued a formal request to its Republican counterpart, asking it to join in showing a “united front” and creating a “joint plan” against any Russian efforts to undermine the 2018 elections, I’ve learned.

DCCC Chairman Ben Ray Luján (N.M.) has sent a letter to Rep. Steve Stivers (Ohio), the chair of the NRCC, asking him to work with Democrats in a unified effort to guard against Russian efforts to undermine next year’s congressional races. In the letter, Democrats ask Republicans to pledge not to use any information obtained via Russian hacking against Democratic candidates, and to create a joint plan in collaboration with the Department of Homeland Security and the FBI to guard against Russian interference. The letter was passed on to me by a Democratic source.


Second Circuit Grants Sheldon Silver New Trial Based on McDonnell-Linked Instructional Error


After Silver had been convicted and sentenced, the Supreme Court issued its decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), which clarified the definition of an “official act” in honest services fraud and extortion charges. The Supreme Court, vacating the conviction of former Governor Robert McDonnell of Virginia, held that “an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’” involving “a formal exercise of governmental power.” Id. at 2371–72.    Silver now appeals from his judgment of conviction and argues, primarily, that the District Court’s jury instructions defining an official act as “any action taken or to be taken under color of official authority” was erroneous under McDonnell. He additionally challenges the sufficiency of the evidence on all counts of conviction, arguing, among other things, that his money laundering conviction under 18 U.S.C. § 1957 required the Government to trace “dirty” funds comingled with “clean” funds.

Though we reject Silver’s sufficiency challenges, we hold that the District Court’s instructions on honest services fraud and extortion do not comport with McDonnell and are therefore in error. We further hold that this error was not harmless because it is not clear beyond a reasonable doubt that a rational jury would have reached the same conclusion if properly instructed, as is required by law for the verdict to stand.

Accordingly, we VACATE the District Court’s judgment of conviction on all counts and REMAND the cause to the District Court for such further proceedings as may be appropriate in the circumstances and consistent with this opinion.


“Online ads offer legal option for U.S. election meddling”

David Ingram for Reuters:

The laws that prohibit foreign nationals from spending money to influence U.S. elections do not prevent them from lawfully buying some kinds of political ads on Facebook and other online networks, campaign finance lawyers said.

The omission of online ads could be a potential hurdle for those investigating alleged Russian meddling in last year’s U.S. presidential election, according to the campaign finance lawyers, who are not involved in the probes.


“Issue One statement on campaign finance related-riders in House Appropriations Committee markup of government funding bill”


Remember when language buried on page 1,599 of the 2014 end-of-year spending bill, Cromnibus, dramatically expanded how much donors could inject into national parties? And the intended consequence that a single donor can now contribute up to $474,600 per year to joint fundraising committees?

Well, secret provisions are potentially back in Thursday’s full House Appropriations Committee markup of the FY18 Financial Services and General Government appropriations bill.

These campaign finance-related riders would dramatically affect campaigns and elections that fall within the jurisdiction of the Internal Revenue Service (IRS), Securities and Exchange Commission (SEC) and Federal Election Commission (FEC).


Maine SOS Dunlap Predicts “a Lot of Head-Butting” at First Meeting of Pence-Kobach Fraud Commission


Dunlap, a Democrat, said it will be important for the commission, which meets for the first time July 19, to clearly identify its goals and the information needed to reach them while at the same time effectively communicating with the public.

“The core thing is that we got to do it in a way that engenders confidence, not suspicion,” said Dunlap, who anticipates a lot of head-butting when the commission first meets.

Dunlap and Gardner, two Democrats on the commission who are familiar with each other, plan on challenging the commission’s other members.

“(Gardner and I) are going to be on the street corners with bullhorns telling people what’s going on,” Dunlap said.


“Race, Representation, and the Voting Rights Act”

Sophie Schuit and Jon Rogowski have written this article for AJPS.  Abstract:

Despite wide scholarly interest in the Voting Rights Act, surprisingly little is known about how its specific provisions affected Black political representation. In this article, we draw on theories of electoral accountability to evaluate the effect of Section 5 of the Voting Rights Act, the preclearance provision, on the representation of Black interests in the 86th to 105th congresses. We find that members of Congress who represented jurisdictions subject to the preclearance requirement were substantially more supportive of civil rights–related legislation than legislators who did not represent covered jurisdictions. Moreover, we report that the effects were stronger when Black voters composed larger portions of the electorate and in more competitive districts. This result is robust to a wide range of model specifications and empirical strategies, and it persists over the entire time period under study. Our findings have especially important implications given the Supreme Court’s recent decision in Shelby County v. Holder.


Reuters: Trump Won’t Blame Trump Jr. For Taking Meeting with Russian Government for Supposed Dirt on Hillary


Trump Jr. eagerly agreed to meet the woman he was told was a Russian government lawyer who might have damaging information about Democratic rival Hillary Clinton as part of Moscow’s official support for his father’s presidential election campaign, according to emails the son released on Tuesday.

In the interview, Trump said he did not fault his son for holding the meeting. “I think many people would have held that meeting,” the president said.


“Democrats Sue Trump Campaign Over Leaked Emails Tied to Russia”


 Two Democratic Party donors and a former party staff member have filed an invasion of privacy lawsuit against President Trump’s campaign and a longtime informal adviser, Roger J. Stone Jr., accusing them of conspiring in the release of hacked Democratic emails and files that exposed their personal information to the public.

The case was organized by Protect Democracy, a government watchdog group run by former Obama administration lawyers. It filed the claim just short of a deadline under a one-year statute of limitations for privacy invasion lawsuits: WikiLeaks published the first archives of stolen Democratic National Committee emails, which intelligence agencies say Russia hacked to harm Hillary Clinton’s presidential campaign and help Mr. Trump, last July 22.


“Donald Trump Jr.’s Free Speech Defense: It’s as bogus as it sounds.”

I have written this piece for Slate. It begins:

Get ready for the latest defense for Donald Trump Jr.’s actions: He had a First Amendment right to collude with the Russians to get dirt on Hillary Clinton. This defense, which has been advanced by noted First Amendment expert Eugene Volokh and others, posits that he cannot be charged under campaign finance laws for soliciting a foreign contribution because seeking and providing such information would be protected political speech, or at least protected for an American to receive. It’s a dangerous argument which fails to recognize the compelling interest promoted by Congress’s ban on foreign contributions: specifically guarding American self-government against foreign intrusion.

It concludes:

Right after the Supreme Court decided the 2010 case Citizens United v. FEC, freeing corporations to spend money in elections independent of campaigns on the grounds that such independent spending cannot corrupt democracy, a Canadian lawyer living in New York named Benjamin Bluman brought a similar suit. He argued that his independent spending of 50 cents to make flyers and hand them out in Central Park in support of President Barack Obama should not be a crime because he could not corrupt the process.

A three-judge district court, in an opinion by conservative D.C. Circuit Judge Brett Kavanaugh, roundly rejected the argument and affirmed the broad scope of the foreign contribution ban in Bluman v. FEC: “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.” The Supreme Court thought this result was so self-evident it summarily affirmed the lower court judgment without scheduling argument and without issuing a separate decision. That is how obvious the country’s interest is in preventing foreign influence over our elections.

To let someone off the hook who solicited “very high level and sensitive information” from a hostile government because there may be cases in which information from a foreign source does not raise the same danger to our national security and right of self-government is to turn the First Amendment into a tool to kill American democracy.

Put aside the incredulity Trump World would deserve if it pivots from saying there were no campaign contacts with the Russian government to acknowledging the contacts and saying they were just free speech. As a matter of protecting American democracy, the argument is pernicious and threatens the very core of what it means for “we the people” to decide who governs us.


“Orchestrated Chaos; Trump’s election commission has been a disaster. It’s going exactly as planned.”

Dahlia Lithwick:

Destabilizing and undermining the idea that voting in America matters, especially against the backdrop of an election in which foreign interference might actually have had an influence on the outcome, is all to the good. Think back on the pathetic rollout of the travel ban, the witless legal defenses, and the serial losses at the courts of appeals. It wouldn’t have been hard to get that right either. The depressing answer is that nobody in this administration cares to get anything right. Getting it wrong and shattering confidence in the wheels and levers of democracy is its own reward.


“Emails Pose Potential Problem for Trump Jr. After Meeting With Russian Lawyer”

Jacob Gershman and Nicole Hong for the WSJ:

That Mr. Trump Jr. came away empty-handed may be a mitigating factor, but as a defense, it is limited. Soliciting a foreign campaign contribution can be illegal even if the donation doesn’t pan out. What matters is that there was an expectation of getting something valuable.

Opposition research on a political foe could be considered something of value, particularly if the supplier of the information spent money to obtain it, election-law experts say. The Federal Election Commission has said the definition can encompass goods or services, like air travel or food, provided free or at below-market rates. Information can be a gift too, like polling data or donor lists.


“Civic Groups Sue Indiana Secretary of State, Say Release of Personal Voter Data Is Illegal Under State Law”

Release from Brennan Center:

Indiana Secretary of State Connie Lawson said she will give some voter information to the Presidential Advisory Commission on Election Integrity as requested, but Indiana civic groups and others argue in a lawsuit submitted to Lake County court today that doing so violates state law. Lawson is a member of the controversial Commission, which is chaired by Vice President Mike Pence, the former governor of Indiana.


In 2004, FEC Voted 5-1 to Find Grover Norquist Contact List Provided to Bush-Cheney Committee Was a “Thing of Value” for Campaign Finance Purposes

More evidence that a Russian government offer to provide opposition research to the Trump campaign would be considered a ‘thing of value” for purposes of the law barring the solicitation of things of value from foreign entities (as Donald Trump Jr. is now alleged to have done):

In MUR 5409 (2004), the Federal Election Commission voted 5-1 to accept the general counsel’s finding that Grover Norquist’s Americans for Tax Reform (a corporation) provided a “thing of value” to the Bush-Cheney reelection campaign. It was a list of conservative activists in 37 states.  Some of the information may have been publicly available when Norquist gave it to Ken Mehlman of the campaign. The General Counsel found that this was a prohibited corporate contribution and that Bush-Cheney violated the law by failing to report it. But it found the list had so little value that the General Counsel did not recommend pursuing the matter further.

Commissioner Toner alone dissented. He believed the matter should be dismissed as a matter of prosecutorial discretion.


Anything of Value Also Read Broadly in Context of Federal Bribery Laws (Menendez Case)

Following up on my “thing of value” posts related to Donald Trump Jr. and possible solicitation of foreign contributions charge, here’s something analogous from the bribery context:

U.S. v. Menendez, 132 F. Supp. 3d 635 (D.N.J. 2015):

… bribery under § 201(b), which is defined as the corrupt acceptance of “anything of value” with the intent to be influenced in the performance of an official act, turns on a subjective definition of “anything of value.” See, e.g., United States v. Renzi, 769 F.3d 731, 744 (9th Cir.2014) (The term “anything of value” is “defined broadly to include ‘the value which the defendant subjectively attaches to the items received.’ ” (quoting United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir.1986))); United States v. Williams, 705 F.2d 603, 623 (2d Cir.1983) ( “Corruption of office occurs when the officeholder agrees to misuse his office in the expectation of gain, whether or not he has correctly assessed the worth of the bribe.”). Notwithstanding the statement in Citizens United that independent expenditures have no actual value to candidates, a jury could find that Defendant Menendez placed value, albeit subjective, on the earmarked donations given to Majority PAC by Melgen.

Second, § 201(b)(1) criminalizes the making of a corrupt promise to a public official “to give anything of value to any other person or entity,with intent to influence any official act,” and § 201(b)(2) criminalizes corruptly seeking “anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act.” (emphasis added). Public officials have been convicted for being influenced in the performance of their duties in return for bribes paid to third parties. See United States v. Jefferson, 674 F.3d 332, 341–42 (4th Cir.2012) (Payments made to a business controlled by a Congressman’s wife in exchange for official action constituted bribery.); United States v. Siegelman, 640 F.3d 1159, 1165–66 (11th Cir.2011) (Governor was guilty of federal funds bribery and honest services fraud after exchanging a seat on a state board for a donation to a foundation campaigning for a ballot initiative to establish a lottery to fund education.); cf. United States v. Spano, 421 F.3d 599, 603 (7th Cir.2005) (“A participant in a scheme to defraud is guilty even if he is an altruist and all the benefits of the fraud accrue to other participants … the public is deprived of its servants’ honest services no matter who receives the proceeds.”) (internal citations omitted). The indictment alleges, among other Charges, that “Menendez sought and received from Salomon Melgen … approximately $300,000 for Majority PAC that was earmarked for the New Jersey Senate race … in return for Menendez’s advocacy at the highest levels of HHS on behalf of Melgen….” Indict. ¶ 259. Even if contributions to Majority PAC had no objective value to Menendez, they unquestionably had value to Majority PAC as an entity, and § 201(b)(2) criminalizes corruptly seeking anything of value, even for another person or entity, in return for being influenced in the performance of an official act. Cf. Siegelman, at 1169–70 (allowing federal funds bribery conviction of a governor based on a corrupt donation to an issue advocacy campaign).

Relevant to Donald Trump Jr., FEC in 2004 Read the Term “Thing of Value” Broadly When It Comes to Foreign Contributions

Following up on this post, there are remaining questions about whether providing “dirt” or files related to Hillary Clinton from Russian government sources could be considered a “thing of value” for purposes of the law barring the solicitation of contributions from foreign entities. I’ve already pointed to a 1990 advisory opinion of the FEC so suggesting, in the context of providing polling information (something intangible) free of charge. Here’s another, from 2007, that is even strong on the question of the breadth of the foreign contribution ban, even as to those things whose value may be “difficult to ascertain” (my emphases added):

Question 4. May your authorized committee accept election materials used in previous Canadian campaigns that are provided without charge by Canadian third party candidates?

No, your authorized committee may not accept election materials used in previous Canadian campaigns that are provided without charge by Canadian third party candidates. Your authorized committee may, however, expend campaign funds to purchase the materials. You may also use personal funds to purchase such materials.

As noted above, the Act and Commission regulations prohibit foreign nationals, directly or indirectly, from making a “contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal State, or local election.” 2 U.S.C. 441e(a)(1)(A); see also

11 CFR 110.20(b). “Anything of value” includes all in-kind contributions, including the provision of goods or services without charge or at a charge that is less than the usual and normal charge. See 11 CFR 100.52(d)(1). “Usual and normal charge” is defined as the price of goods in the market from which they ordinarily would have been purchased at the time of the contribution, or the commercially reasonable rate prevailing at the time the services were rendered. See 11 CFR 100.52(d)(2).

Here, you propose accepting without charge, from Canadian third party and independent candidates, certain printed materials used in previous Canadian campaigns. The materials would include flyers, advertisements, door hangers, tri-folds, signs, and other printed material. You plan to use these items to assist you in your own campaign. Although the value of these materials may be nominal or difficult to ascertain, they have some value. The provision of these items without charge would relieve your campaign of the expense that it would otherwise incur to obtain such materials. Thus, the provision of such items without charge would constitute a contribution and, as such, would be prohibited, particularly in light of the broad scope of the prohibition on contributions from foreign nationals. See, e.g., 120 Cong. Rec. 8782 (Mar. 28, 1974) (statement of Sen. Bentsen, author of the amendment prohibiting foreign national contributions) (“I am saying that contributions by foreign nationals are wrong, and they have no place in the American political system.”); see also Explanation and Justification for Regulations on Contribution Limitations and Prohibitions, 67 Fed. Reg. 69940 (Nov. 19, 2002) (“As indicated by the title of section 303 of BCRA, “Strengthening Foreign Money Ban,” Congress amended 2 U.S.C. 441e to further delineate and expand the ban on contributions, donations, and other things of value by foreign nationals.”).

The situation presented here is similar to that considered by the Commission in Advisory Opinion 1981-51 (Metzenbaum). In that opinion, the Commission concluded that the provision of an original work of art by a foreign national artist to a political committee for use by the committee in fundraising was a contribution and, hence, prohibited by 2 U.S.C. 441e. Similarly here, you plan to use the printed materials from previous Canadian campaigns to assist you in your own campaign. As such, their provision without charge by foreign nationals would constitute a prohibited in-kind contribution to your campaign. Nor may you solicit, accept, or receive such goods from foreign nationals. See 2 U.S.C. 441e(a)(2); 11 CFR 110.20(g) and (h). Your committee may, however, expend campaign funds to purchase such materials because such use of campaign funds would be an otherwise authorized expenditure in connection with your campaign for Federal office and would not constitute a conversion to personal use. See 2 U.S.C. 439a(a)(1); 11 CFR 113.2. You may also use personal funds to purchase such materials. See 11 CFR 110.10.


“Voting rights battle in Pasadena could have Texas-wide legal ramifications”

Texas Tribune:

And that’s where the case comes back to Wheeler’s name.

Heath points out that four candidates preferred by Hispanic voters prevailed in the 2015 elections — the only contests held under the 6-2 map. Among them was Wheeler, who was re-elected in a district that’s not majority-minority but is still “effective for Hispanics,” Heath said.

“That’s 50 percent (of the council seats) and Hispanics made up about 50 percent of the citizen voting-age population, so that was proportional representation,” Heath added.

But Nina Perales of the Mexican American Legal Defense Fund — the attorney representing the Hispanic plaintiffs against the city — has repeatedly pointed out in court that Wheeler was assisted in his 2015 victory by “special circumstances” — his incumbency and his last name. Meanwhile, the number of Hispanic-majority districts was reduced to three under the 6-2 map.

The case could reverberate beyond Pasadena’s city limits. Legal experts contend that a decision by the 5th Circuit could guide other courts around the country that are considering similar voting rights cases.


“Meet the Vote Suppressors and Conspiracy Theorists on Trump’s ‘Election Integrity’ Commission”

Ari Berman:

The likes of Kobach, Blackwell, von Spakovsky, and Adams have for years spread debunked lies about voter fraud and have championed efforts to make it harder to vote, often in violation of federal law. Putting them on an “election integrity” commission is as bad of an idea as Trump forming a “cybersecurity unit” with Vladimir Putin.


“Secretaries of State pass resolution supporting state rights to oversee elections”


The nation’s Secretaries of State sent a clear message to the White House.

Members of the National Association of Secretaries of State meeting in Indianapolis unanimously passed a bipartisan resolution underscoring the Constitutional rights of of states to administer local, state and federal elections.

The resolution is in response to a letter from the Presidential Commission on Election Integrity, which requested secretaries turn over sensitive information about every voter including including party affiliation, voting history and Social Security numbers.


Two from Ned Foley: One on Due Process and Elections, the Other on Partisan Gerrymandering

The U Chicago Law Review has posted Ned’s Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election LawsThis is one of Ned’s most significant pieces tying together historical research, jurisprudence, and judicial precedent in an effort to develop a framework that is both theoretically sound and operationally practical—and potentially applicable to multiple different specific areas of election law.
It has been notoriously difficult for the U.S. Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one-person, one-vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one-person, one-vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning in sharp contrast to the universalism of the “one-person, one-vote” principle; and particularism can provide a judicially manageable standard for partisan gerrymandering claims, doing so by making the original Gerrymander—the one provided the name for this category of pernicious partisanship—a fixed historical benchmark by which to judge the distortion of legislative districts.
This particularistic reasoning should be persuasive to Justice Anthony Kennedy, especially if rooted in the First Amendment (home to other well-known examples of particularistic analysis), and if also combined with a cogent explanation why the First Amendment right must remain “judicially under-enforced” relative to its potential scope on universalistic grounds, because of the barrier imposed by the political question doctrine’s need for a judicially manageable standard. (Particularism, in other words, defines not necessarily the full First Amendment right from a theoretical perspective, but only the judicially enforceable portion of it.) Even more important than persuading Justice Kennedy, however, is convincing a Supreme Court controlled by conservatives—after Kennedy has been replaced by another like Justices Thomas, Alito, or Gorsuch—not to overrule an opinion in which Justice Kennedy has identified a judicially manageable standard for invalidating partisan gerrymanders as unconstitutional. On this crucial point, particularism has distinct advantages to universalism, including facilitating the possibility that the Kennedy-authored precedent quickly becomes imbedded in the nation’s political culture, because the public easily understands (and embraces) a precedent that renders unconstitutional a district as disfigured as the original Gerrymander. A precedent that becomes as integral element of America’s public self-understanding in this way is one that conservatives on the Court would have difficulty overruling and, indeed, little interest in repudiating insofar as it is historically grounded and limited by the kind of particularistic reasoning that conservatives consider acceptable.

Donald Trump Jr. Emails Paint Serious Case of Campaign Finance Violations

Just to recap where we are:

It is illegal for a person to solicit a contribution to a campaign from a foreign individual or entity. To solicit:

means to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value. A solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value. A solicitation may be made directly or indirectly. The context includes the conduct of persons involved in the communication. A solicitation does not include mere statements of political support or mere guidance as to the applicability of a particular law or regulation.

(This is from another FEC regulation, incorporated by reference into the foreign contribution ban.)

In˚ two tweets, Donald Trump Jr. released an email chain that explains the meeting  he had with the Russian lawyer to get “dirt” on Hillary Cinton that has been the subject of the investigation. (He released them just as the NYT posted a story on them.)

Looking at the emails, it seems pretty serious. Trump Jr. got an email from his friend stating: “Emin just called and asked me to contact you with something very interesting. The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”

Trump Jr. replied almost immediately: “If it’s what you say I love it especially later in the summer.”

Hard to see how there is not a serious case here of solicitation. Trump Jr. appears to have knowledge of the foreign source and is asking to see it. As I explained earlier, such information can be considered a “thing of value” for purposes of the campaign finance law. (Update: More on the meaning of “thing of value” here and here.)

It is also possible other laws were broken, such as the laws against coordinating with a foreign entity on an expenditure.  There could also be related obstruction, racketeering, or conspiracy charges, but these are really outside my area of specialization and I cannot say.

But there’s a lot for prosecutors to sink their teeth into. Pretty close to the smoking gun people were looking for.


In the Trump Jr. Case, Can “Dirt” on Hillary Clinton Be “Anything of Value”?

As I indicated in a blog post the other day, I think the foreign solicitation and coordination claims are credible.  The two big questions are knowledge it was a foreign source (now credible if last night’s New York Times story is correct) as well as if the information being provided counts as “anything of value” for purposes of the law. There is at least one Federal Election Commission advisory opinion from 1990 that polling data information could count as “anything of value:”

Mr. Hochberg commissioned this poll for his own potential candidacy and not on behalf of your campaign. Although Mr. Hochberg obviously will have knowledge of the polling information while he pursues his volunteer activities, Mr. Hochberg entered into the transaction with the pollster prior to working for your campaign and not in contemplation of working for your campaign. His receipt of the results was a completion of that transaction, rather than a receipt on behalf of your campaign. In such circumstances, Mr. Hochberg’s knowledge of the poll results by itself is not treated as a contribution of the poll and will not preclude his unpaid volunteer services to the campaign.

If, however, Mr. Hochberg imparts poll result information to you or anyone else working for your campaign, including any data or any analysis of the results, or if he uses the poll information to advise your campaign on matters such as campaign strategy or creating media messages, such poll information will constitute an in-kind contribution from Mr. Hochberg to your campaign, and an expenditure in an equal amount by your committee. 11 CFR 106.4(b). See also 11 CFR 104.13(a) and (b). The amount of such a contribution will be determined by calculating the share of the overall cost of the poll allocable to that particular information. Cf. 11 CFR 106.4(e). A determination as to the overall cost of the poll in its entirety will be premised upon the decreasing valuations presented in 11 CFR 106.4(g).


(emphasis added).

So I think this merits further investigation.


Beyond Words: J. Christian Adams Appointed to Pence-Kobach Commission

If you look at this list of people on the Pence-Kobach commission:



von Spakovsky

and now Christian Adams…

it is hard to imagine a list of people less credible on the issue of the extent of voter fraud in the United States, and who have done more to raise the scourge of voter fraud as a means to advocate for laws to make it harder for people to register and to vote. This is not a list meant to inspire bipartisan cooperation on fixing election administration. It is assembling a rogues’ gallery of vote suppression.

The only one missing is John Fund.  Maybe he’ll be appointed their research director.

There was another Democrat named today, Alan Lamar King of Alabama.  Never heard of him, which is the pattern with most of the Democrats on the so-called “bipartisan commission.”


(Here’s a bit on my run-ins with Adams.)



Must-read Bauer: “Open Door to Moscow? New Facts in the Potential Criminal Case of Trump Campaign Coordination with Russia”

Following up on my earlier post about whether Trump Jr.’s revelations of the meeting with a Russian operative who was offering dirt on Hillary Clinton could violate the law on soliciting foreign contributions, Bob Bauer has this must-read:

Of course, it should go without saying that we will have a reliable grasp on the evidence only when the facts are developed and tested through the legal system. There are a host of questions still to be answered about the reported Trump campaign contacts. But the most recent press accounts are especially significant because they include specific statements on the record conceding the Trump campaign’s expressed interest in what the Russians could provide.  Those statements show intent–a clear-cut willingness to have Russian support–and they reveal specific actions undertaken to obtain it….

This new and remarkable information adds considerably to the potential criminal violation of the federal law that prohibits “substantial assistance” to foreign nationals seeking to influence a federal election. Now we have, as part of the public record, specific and private actions to establish intent to provide this assistance. Donald Trump can’t very well sustain his position that in calling for the Russians to find the missing email, he was merely joking. His campaign was furthering behind closed doors the objective that the candidate was “jokingly” professing. If confirmed and further developed in the Mueller investigation, these facts also bolster the campaign’s exposure to “aiding and abetting” liability for a campaign finance violation.

There are two additional grounds for that criminal liability: the campaign’s “coordination” with Russian foreign national sources, as a result of which it received an illegal contribution, and its “solicitation” of this illegal contribution, each of which independently violate the law.


Live Webcast at 1:30 PM Eastern Today: 7th Annual UCI Law Supreme Court Term in Review Event

7th Annual Supreme Court Term in Review

Monday, July 10, 2017, 10:30 a.m.–12:00 p.m. Pacific Time
Irvine Barclay Theatre (Map)


Livestream here >

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2016 term, with an all-star panel of Supreme Court practitioners, journalists, and academics.


Viewers may submit questions via Twitter (@UCILaw or @rickhasen), using the hash tag #ucilawscotus at the end of your question.


Michael Wines on Tensions at Annual Meeting of Secretaries of State over Pence-Kobach


Republicans scrambled to distance themselves from the letter’s call for private data like birthdates and partial Social Security numbers without impugning their president’s claim or his commission. But giving the claim credibility placed them in the awkward position of saying either that other secretaries had overlooked millions of illegal votes, or that they had found them and lied about it.

Asked at a news conference on Friday whether Mr. Trump’s assertion of millions of illegal votes was credible, one of the Democratic secretaries of state on the White House panel, Matthew Dunlap of Maine, said that he “would be stunned to see a number anywhere near that.” He noted that he had failed to find a single verifiable case of fraud in his 11 years on the job.

Ms. Lawson, the Indiana secretary of state and a Republican on the commission, gave a more contorted response. “They know they can’t get by with it in Indiana,” she said, but “I can’t speak to what happens in other states.” Asked whether she personally believed Mr. Trump’s claim, she repeated her answer.


NY: “Redistricting panel with diminished role lives on with $1.5 million budget”

Times Union:

“It’s a place for patronage and to allow the respective houses to stay on top of demographic changes,” Dadey said. “They can know which seats to protect or where there are new opportunities.”

Indeed, the minority parties have complained that they have little input in the program and receive no information from the task force. In 2012, after LATFOR’s maps were introduced, Brooklyn Sen. Martin Dilan, the minority Senate Democrat on LATFOR, said at a hearing that “the entire process has been a farce, a sham, has been a waste of money.”