“The footnote in Barr’s Mueller report letter we need to pay attention to”

Larry Noble for CNN Opinion:

Since there are only two footnotes in the letter and this is the only substantive footnote, one can assume Barr thinks the legal definition of “coordination” used is significant. He is right.


The question of whether the Trump campaign interacted with the Russians as they interfered in the 2016 election, and whether that interaction is illegal, is often framed in terms of whether there was “collusion” between the campaign and the Russians. However, “collusion” is not a term of art and has no specific legal meaning in this case. In fact, the word “collusion” never appears in Barr’s letter.


Rather, Barr quotes Mueller as looking at whether the Trump campaign “conspired or coordinated with the Russian government.” The question of whether the Trump campaign “coordinated” with Russia is central to the question of whether the campaign violated campaign finance law, which prohibits foreign nationals from making political contributions and candidates from accepting such contributions. A contribution is defined as “anything of value” and can include giving money to the campaign or spending money to support a candidate’s election in coordination with the campaign. The latter is called an “in-kind” contribution.


Therefore, if the Trump campaign “coordinated” with the Russians in their efforts to help get him elected, the Russians made, and the Trump campaign accepted, a prohibited in-kind contribution from a foreign national. If they did so knowingly and willfully, it is a criminal violation.
The FEC’s current regulation, 11 CFR § 109.20(a), provides: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or a political party committee.” Coordination can result if a “communication is created, produced, or distributed after one or more substantial discussions” between the campaign and the person paying for the communication, regardless of whether there was any “agreement” about the communication.


The FEC did not reach this definition lightly. The Bipartisan Campaign Reform Act of 2002ordered the FEC to rewrite its coordination rules and explicitly stated: “The regulations shall not require agreement or formal collaboration to establish coordination.” The reason for this was clear and easily explained by the Supreme Court when, in 2003, it upheld this congressional directive in McConnell v. Federal Election Commission. According to the court, “expenditures made after a wink or nod often will be as useful to the candidate as cash.” As the court further explained, “[a] supporter easily could comply with a candidate’s request or suggestion without first agreeing to do so, and the resulting expenditure would be virtually indistinguishable from [a] simple contribution. …”

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