Is opposition research protected speech?

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By Kent R. Kroeger (July 31, 2018)

The news media never lets an opportunity get away to jump on Donald Trump and his surrogates. The latest example is Trump adviser Rudy Giuliani saying during a CNN interview that ‘collusion is not a crime.’

Is he right? Is the news media right in disputing his legal claim?

As it typically is, the answer to both questions is ‘Yes and No’.

No, there is no specific federal indictment for collusion. (Giuliani is correct).

However, yes, the term ‘collusion’ is used in the context of the Trump-Russia investigation as a rhetorical umbrella to cover a broad range of indictable crimes such as: aiding and abetting a crime, being an accessory to a crime, false statements, theft or robbery (including the hacking of e-mails), attempting a crime, conspiracy, fraud, money laundering, obstruction of justice, perjury, racketeering under the RICO statute, and wire fraud.

In theory, these are crimes for which Donald Trump’s campaign associates could be indicated as part of Robert Mueller’s Trump-Russia investigation. [Note: Harvard law professor Alan Dershowitz makes a strong legal argument that a sitting president cannot be indicted; while there are highly-regarded constitutional experts that disagree with Dershowitz’ claim, until it is settled by the U.S. Supreme Court, my inclination is to assume Dershowitz is correct.]

In reality, any indictments by Mueller’s team are most likely going to involve the crimes of giving false statements and obstruction of justice. Those are the low hanging fruits for federal prosecutors. These are the primary crimes that took down Richard Nixon and his associates during Watergate.

More speculatively, Mueller may be looking into whether Trump’s team conspired (unlike collusion, a conspiracy is a crime) with Russian agents to defraud the U.S. during the 2016 election. For example, Mueller is likely deciding whether Trump’s associates aided and abetted a crime such as helping the Russians target their social media campaign to specific voter segments, helping the Russians distribute stolen property (i.e., the DNC/Podesta emails), or helping to launder Russian money into the Trump campaign finance coffers.

And, keep in mind, planning to commit a crime is a crime too, even if no crime is actually committed. It is also illegal to knowingly take possession of stolen property.

According to FindLaw.com, “A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then take some action toward its completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law. One person may be charged with and convicted of both conspiracy and the underlying crime based on the same circumstances.”

This is where the June 2016 Trump Tower meeting between Jared Kushner, Donald Trump Jr., and Russian lawyer Natalia Veselnitskaya (and at least five others) becomes important.

Was it illegal for Donald Trump Jr. and Jared Kushner (or anyone else in the Trump campaign) to take a meeting with a Russian lawyer over Russia’s possible possession of ‘dirt’ on Hillary Clinton?

If you listen to the news media (including Fox News!), there is a broad assumption that such a meeting would be illegal if the parties discussed the Trump campaign taking possession of stolen property (‘dirt’ on Clinton) OR helping the Russians in laundering stolen property through a third party such as Wikileaks.

CNN Editor-at-Large Chris Cillizza’s July 27th article titled, “Michael Cohen just dropped a collusion bombshell in the Russia investigation,” is indicative of this common news media assumption.

“If Michael Cohen can make good on his allegation that Trump knew about the meeting prior to it happening — and perhaps provide corroborating witnesses to that effect — it would not only prove the denials by the President and his son wrong, but it would be the biggest step to date in proving (or at least suggesting) real collusion between the Trump team and the Russians,” argues Cillizza.

But does it?

Setting aside the question of whether collusion is a crime, there is a genuine legal question that the national news media has largely ignored during their coverage of the Trump-Russia investigation: Is it legal for a presidential campaign in the course of doing opposition research to ask foreign actors for compromising information about an opponent, including information illegally obtained by these foreign actors?

If it weren’t for the leaking of classified information from the U.S. intelligence community (an illegal act), the New York Times would have little to print regarding the Trump-Russia story. The national news organizations depend heavily on their access to anonymous leakers within the U.S. government and their publication of such information is constitutionally protected speech.

But what about political campaigns?

Aside from one excellent opinion piece by UCLA law professor Eugene Volokh published in The Washington Post over a year ago, there has been little discussion of this question as it relates to the Mueller probe.

As of today, there is no evidence that Donald Trump Jr. or Jared Kushner believed the ‘dirt’ on Clinton they sought from the Russians were the product of an illegal hack or that they intended to take possession of this ‘dirt’ had it been made available by the Russians in the Trump Tower meeting. There is also no evidence Don Jr. or Jared offered to help the Russians in laundering this ‘dirt’ through a third party such as a friendly journalist or whistle-blower website (Wikileaks).

But even if Don Jr. and Jared talked with the Russians about doing that, it is still not clear they would have been committing a crime. Perhaps they were simply doing opposition research to find out what ‘dirt’ the Russians had on and, if it did exist, what information was contained in this ‘dirt’ that might help the Trump campaign? A normal, well-run presidential campaign will often hire former journalists (people like Glenn Simpson at GPS Fusion) to do their opposition research.

News organizations routinely print or broadcast illegally obtained information and the U.S. Supreme Court, through its New York Times Co. v. United States ruling during the Pentagon Papers controversy in the early 1970s, upheld the right of the press to do this. Bradley Manning, Edward Snowden, and Daniel Elsberg are heroes to many Americans and all three committed unquestionably illegal acts.

So before anyone screams, “Don Jr. and Jared are not protected by the same laws that protect journalists or whistle-blowers,” they need to consider this argument offered in Eugene Volokh’s Washington Post editorial.

Volokh starts by acknowledging the many legal scholars who have concluded that since U.S. campaign finance law prohibits non-U.S. citizens from offering ‘anything of value’ to a U.S. political campaign, the law would also consider the Trump campaign’s expressed interest in obtaining Clinton’s deleted emails from a foreign actor to be prohibited. “Campaign staff are barred from soliciting any ‘thing of value’ from such foreigners. And, the argument goes, valuable political information about an opponent’s misdeeds is a ‘thing of value,’” writes Volokh, who cites legal analyses by election law scholar Rick Hasen (UC-Irvine School of Law) and by Common Cause.

But Volokh believes this interpretation of what constitutes a ‘thing of value’ would make “opposition research on much possible foreign misconduct virtually impossible.” In his view, such a broad interpretation of ‘a thing of value’ would be deemed unconstitutional if brought before a court.

Volokh offers this hypothetical situation:

Say, hypothetically, that a Turkish advocacy nonprofit thinks something bad is happening at Trump Towers Istanbul. Unsurprisingly, it doesn’t just send an e-mail saying “hey, we’re upset, and we think there’s something bad afoot.” Instead, it actually tries to gather enough information to prove what it suspects. It then mentions to the Clinton campaign that it has such “compiled information.” It seems to me that the Clinton campaign would have a First Amendment right to express a willingness to get this information; if the law bans such speech, then it is unconstitutionally overbroad.

The U.S. Constitution trumps what campaign finance law might say.

According to Volokh, “Those (campaign finance) rules ban contributions of ‘things of value’ by all foreign citizens (except those who are also U.S. citizens or permanent residents), and the argument is that politically useful information about a candidate’s opponent is in general a thing of value. If that is the right way to construe the statute banning foreign contributions, then the statute…is therefore ‘substantially overbroad’ and thus facially unconstitutional (at least as to such information), regardless of whether a narrower statute could ban the particular kind of speech involved here. But if we avoid the overbreadth by construing ‘things of value’ as not including information (or as not including one-off information that isn’t in the form of a standard commercially distributed product, such as poll results or prospective contributor lists), then Donald Trump Jr.’s expression of willingness to accept such information from foreigners (including ones linked to foreign governments) wouldn’t be covered by the statute.”

In Volokh’s interpretation, by extension, it would also be legal for Donald Trump Sr. to approve or have knowledge of such a meeting.

Admittedly, Volokh cautions that his interpretation of the law would still not allow Don Jr. or Jared to ask for ‘dirt’ on Clinton from the Russians if they knew the ‘dirt’ was a compiled product procured through illegal means. And the law most definitely does not allow the Trump campaign to aid or abet any illegal hacking of an opponent’s emails. However, assuming that is not the case, Volokh asserts that prohibiting an expressed interest in obtaining ‘dirt’ on Clinton is most likely unconstitutional.

Still, legal scholar Rick Hasen responded in Slate to Volokh’s analysis of the law with this vigorous rebuttal:

Should it ever come down to a prosecution of Donald Trump Jr., I think courts would — and should — reject [the First Amendment overbreadth] arguments. One way to do so would be to read the statute more narrowly to proscribe actions like Trump Jr.’s: campaigns taking compiled information for free that they would have paid significant value to receive from a foreign source — or at least a foreign government.

But Volokh remains unmoved by Hasen’s focus on the exchange (or lack thereof) of money for the information. “If someone emails me offering some evidence about someone’s supposed misbehavior, I’ll be open to it, though of course I’ll be skeptical until I can confirm it; but if someone offers to sell it to me, I would think that this would actually produce more possible ethical problems,” says Volokh. “A right to gather evidence should include the right to simply ask for it, without having to offer payment.”

Hasen responds by noting that U.S. laws barring foreign interference in U.S. elections are designed to protect the American democracy. “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,” writes Hasen. “As a matter of protecting American democracy, the (Volokh) argument is pernicious and threatens the very core of what it means for ‘we the people’ to decide who governs us.”

Hasen’s criticism is compelling. It is dangerous to put foreign actors in a position where they know they can legitimately offer compiled information that might alter the outcome of an American election. The incentive is just too large for countries with advanced cyberespionage capabilities— such as Russia, China, Pakistan, Iran, Saudi Arabia, North Korea and Israel — to snoop and poop on U.S. computer servers.

But Volokh offers another hypothetical in response to Hasen’s ‘barring foreign interference’ argument:

If the Hillary Clinton campaign had reason to think that, say, the British government had ‘very high level and sensitive information’ showing serious misbehavior by Trump, I think it would have had every right to get that information and see if it should be put before the American people as evidence that Trump shouldn’t be elected. Limiting candidates’ ability to expose their opponents’ misbehavior would violate the First Amendment, and no interest in ‘barring foreign interference’ could justify such a restriction. Indeed, denying candidates this right to get such information and convey it to voters would itself interfere with ‘the right of the American people themselves to decide who our elected officials and representatives are.’

While the Hasen interpretation is probably the consensus right now, in my opinion, it takes the U.S. down a dangerous path that threatens constitutionally protected speech— perhaps even more dangerous than having foreign governments thinking they can influence U.S. elections by hacking our emails and planting unattributed memes on Facebook and Twitter.

An educated populace is the best protection against foreign propaganda (and domestic propaganda for that matter). Legal restrictions on what types of information are acceptable for campaigns to pursue or the means by which that information is obtained is potentially far more pernicious than anything foreign-sourced Facebook memes or illegally obtained campaign emails can do to disrupt our elections.

I can only hope one of the outcomes of the Trump-Russia investigation is that the courts take up the question of Protected Speech versus Protecting the Integrity of U.S. Elections. If important and relevant information on U.S. candidates exists in the hands of foreign actors, limiting candidates’ access to it (and thereby voters’ access to it) does not sound like an approach that maintains the integrity of U.S. elections. In fact, it does the opposite.

-K.R.K.

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