I have written this piece for Slate. It begins:
President Donald Trump may well have committed a new campaign finance crime if he, as reported, pressured Ukraine into providing dirt on a political rival, former Vice President Joe Biden, and Biden’s son Hunter. Unfortunately, Special Counsel Robert Mueller may have stymied any future DOJ’s ability to enforce that law when he gave Trump’s son, Donald Trump, Jr. a pass earlier this year on similar conduct. If Trump has again sought foreign assistance in an election, Mueller’s decision not to enforce the law last time around is partly to blame for the president acting with total impunity along with an accompanying decay of democratic norms.
And now here we are in the 2020 election season with Trump and Ukraine. Thinking of the four concerns raised by Mueller, the first three elements do not save the president in this case. As to willfulness, there’s no way the president does not know that the solicitation of foreign opposition research constitutes a crime following the Mueller probe. He was even pressed on this by George Stephanopoulos last year and said he might accept such research again, which resulted in the head of the Federal Election Commission releasing a statement to once again clarify that, yes, this would be a crime. We will likely have a recording and a transcript of the Ukraine call, so evidence of the solicitation itself will be easy to find if it exists. Third, Biden is the leading Democratic presidential candidate who has a good chance of running directly against Trump in the 2020 election; of course any “dirt” on Biden would be worth more than $25,000.
So this leaves the First Amendment defense. Thanks to Mueller, Trump can plausibly claim he has a First Amendment right to go to a foreign government to solicit—even potentially extort—valuable information against political opponents. If the First Amendment protected this conduct from Trump, why even hold elections?
Ultimately, the best legal argument is that Trump committed a campaign finance crime if he solicited dirt on Biden and his son, as appears to be the case, regardless of whether there was any quid pro quo. But Mueller, despite expressing concern about potential foreign interference in the 2020 elections in his recent testimony before the House Judiciary Committee, may have given Trump a green light through his own report.
Karl Marx once wrote that history repeats itself, first as tragedy then as farce. In this case, I think it is the opposite. The Trump Tower meeting was a farce. The president’s brazen actions now, if proven, will be a tragedy for American democracy.