July 12, 2017
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Election Law Expert Robert Bauer on What Don Jr.'s Emails Mean for the President (Lily Carollo, 7/11/17, New York)
Campaigns seek out damaging information about their opponents all the time. What makes this Donald Trump Jr. situation unique?
The law specifically prohibits soliciting or accepting anything of value from a foreign national. When we talk about information, which is a very general term - we could be talking about research reports, polling data, a cache of emails -- they have value. The election laws pick up, for this particular prohibition, and in other provisions as well, contributions that consist of something in kind. Something that is not acquired with cash, something that is received in the form that somebody else procured and paid for it.
The word collusion has been thrown around a lot to describe the Trump campaign's possible relationship to Russia. Legally, what does that mean?
Collusion, I think, is a shorthand. It means some sort of conspiracy, conniving, collaboration. In election law there's a term called coordination and that essentially captures circumstances in which a campaign has found somebody to spend money on its behalf. The campaign is a beneficiary of an arrangement by which somebody might, for example, advertise on behalf of the campaign, or purchase goods and services to be delivered to the campaign. If a candidate is a party to that understanding, then in effect it's really no different than the campaign getting money directly from the donor. It's benefiting with its understanding, its consent, and its request. It's benefiting from the expenditure of the fund. And so it's treated as a contribution like any other because the spending was coordinated. And that's where the term coordination comes from. [...]
There are two categories of laws that may apply not just to Trump Jr., but to the Trump campaign and Russia's relationship as a whole: federal election laws and criminal conspiracy laws. Is that correct?
Yeah, and the conspiracy laws connect to the election laws. Because you would have a conspiracy, presumably, should the evidence ultimately support it, to violate the campaign-finance laws. So, the conspiracy would not be free-floating and independent, it would tie directly into the violation of the campaign laws.
With conspiracy laws, the crime is the agreement itself to commit a crime. It doesn't matter whether that effort succeeds or is ever carried out.
That's correct.
Posted by Orrin Judd at July 12, 2017 5:23 AM