Can the Clinton Campaign Be Indicted?

February 18, 2018   •  By Brad Smith   •    •  

Special Prosecutor Robert Mueller’s indictment of 13 Russians for various violations of U.S. law pertaining to elections is drawing a lot of quick and often uninformed comment about campaign finance and lobbying laws. Today, let’s start with this piece, which seems to be making the rounds: Does Mueller Indictment Mean Clinton Campaign Can Be Indicted for Chris Steele?

Here’s the crux of the “yes” argument:

Mueller’s indictment against 13 Russian trolls claimed their social media political activity was criminal because: they were foreign citizens; they tried to influence an election; and they neither registered under the Foreign Agents Registration Act nor reported their funding to the Federal Elections Commission.

The author then applies this to other actors in the drama:

[I]f Mueller’s theory is correct, three things make Steele a criminal: first, he is a foreign citizen; second, he tried to influence an election, which he received payments to do (including from the FBI itself); and third, he neither registered as a foreign agent nor listed his receipts and expenditures to the Federal Election Commission. Also, according to the FBI, along the way, Steele lied…a lot, while the dossier he disseminated contained its own lies based on bought-and-paid for smears from foreign sources reliant on rumors and innuendo.

Second, if Mueller’s theory is correct, three things make FusionGPS a criminal co-conspirator: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Democratic National Committee and the Clinton campaign to the Federal Election Commission.

Third, if Mueller’s theory is correct, then three things make PerkinsCoie a potential target: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Democratic National Committee and the Clinton campaign to the Federal Election Commission, by disguising its receipt of payments from the Clinton campaign as a “legal expense.”

Fourth, if Mueller’s theory is correct, then three things make the DNC a potential target: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Democratic National Committee and the Clinton campaign to the Federal Election Commission, by disguising its payments to Steele as laundered legal expenses to a law firm.

Fifth, if Mueller’s theory is correct, three things make the Clinton Campaign a potential target: it knew Steele was a foreign citizen; it knew, and paid, Steele to influence an election; and it knew, and facilitated, Steele neither registering as a foreign agent nor reporting his funding from the Clinton campaign to the Federal Election Commission, by disguising its funding of payments to Steele laundered through a law firm as a “legal expense.”

I don’t think any of these theories are correct. Registration under the Foreign Agents Registration Act (FARA) is required when one acts “as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal.” 22 U.S.C. 611. It’s not being a foreigner that requires you to register under FARA, it’s acting as an agent of a foreigner. There is no evidence that Steele (acting for Fusion GPS/the DNC/the Clinton Campaign) was acting as an agent of a foreign principal, and obviously that wouldn’t apply to the U.S. entities (Fusion GPS/DNC/Clinton).

On the campaign finance theories, vendors don’t generally have to report anything to the FEC. That is, when a campaign buys, for example, bumper stickers, the campaign has to report the expense. But the company from whom a campaign buys the bumper stickers doesn’t have to register or report anything. If Steele went out and spent his own money to assist the Clinton campaign, that might, in various circumstances, require reporting on his part. But getting paid to do so doesn’t trigger that reporting.

Similarly, the fact that Steele incurred expenses in gathering information doesn’t make it a campaign expense. The campaign expense is what, ultimately, the Clinton Campaign or DNC spent to try to elect Clinton. For example, when a campaign buys cell phones, it’s a campaign expense for the candidate, but assuming that it charged the campaign the market rate, the phone supplier has not made a campaign expenditure or contribution merely because it incurred expenses in manufacturing the phones.

The same logic applies to the ban on foreign expenditures to influence U.S. elections. It is not unlawful to pay a foreign national to provide services, and it is not unlawful for the foreign national to provide services to a U.S. campaign at the market rate. The U.S. campaign would have to report its payments to the company to the FEC, but the foreign entity has not made a campaign expenditure.

The individuals indicted by the Special Prosecutor were, per the indictment, acting as agents of a foreign government. They were not being paid by a U.S. source to provide services to a campaign, but rather simply made their own expenditures in an effort to influence the election. These are the facts that put them in violation of both FARA and campaign finance laws.

Interestingly enough, the author is actually arguing that the Mueller indictments, in his view, lack merit. He writes:

Mueller’s unprecedented prosecution raises . . . novel arguments: first, that speaking out about American politics requires a foreign citizen to register under the Foreign Agents Registration Act; [and] second, that speaking out about American politics requires a foreign citizen list their source and expenditure of funding to the Federal Election Commission…

This, he argues, “raises serious issues under the free speech clause of the First Amendment and due process rights under the Fifth Amendment.” We don’t know the author or his motives, but he seems to be suggesting that anti-Trumpers need to back off a bit. But the result seems to be that anti-Clintonistas have seized on the piece as an argument for prosecuting Clinton and other entities.

All of this illustrates the danger of the current climate of attempting to criminalize political differences and election defeats. Americans are justifiably concerned when foreign governments, especially a hostile foreign government such as Russia, attempts to interfere with and shape our politics. On the other hand, anyone who thinks the Russians (and others) haven’t done this for years is just not thinking. The Russians even operate a cable news station, RT, in the United States for that purpose. Certainly, they use more clandestine efforts as well.

It is important as we consider responses that we not get far ahead of the evidence, or jump to endorse new laws and proposed solutions that jeopardize the rights of Americans. And it is important to note that the main thing that comes through clearly in the Special Prosecutor’s indictments is that the Russian aim wasn’t to elect Trump (or anyone else), but to sow discord and distrust in America, and to discredit whomever won the 2016 election. By overreacting, we play into their hands.

Brad Smith

https://www.ifs.org/author/bsmith/

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