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.
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.