Prosecutors triggered a national firestorm last month when they asserted that President Donald Trump conspired with his ex-fixer, Michael Cohen, to commit campaign finance crimes involving hush money payments to two women. But the discussion has overlooked another Trump campaign finance offense — one that is even easier to prove because it occurred in plain sight.
On July 27, 2016, Trump called on Russia to find presidential Democratic nominee Hillary Clinton’s missing emails. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” Trump proclaimed. He added, “I think you will probably be rewarded mightily by our press.”
Federal campaign finance law prohibits any person from soliciting campaign contributions, defined as anything of value to be given to influence an election, from a foreign national, including a foreign government.
In asking Russia to find Clinton’s emails, presidential candidate Trump violated this statutory prohibition on seeking help from a foreign country to influence an election. Trump in essence called on a foreign adversary to locate and release something that was of great value to him and his campaign.
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The law provides that such a solicitation is illegal regardless of whether the person soliciting the help receives anything in return. The risks of foreign intrusion in our elections are so great that even asking for help from foreigners without consummation is a crime. But in this case, on or about the same day that Trump solicited help from Russia, Russia made its first attempt to break into servers that Hillary Clinton’s personal office used. That event is laid out in detail in an indictment of Russian hackers obtained by special counsel Robert Mueller.
Trump can hardly claim he could not have seen that coming. Suspected Russian election-related hacking was already much in evidence at the time. Nor can he plead ignorance of the law. Trump has given sworn affidavits and made other statements that he has deep understanding of campaign finance laws.
Trump was warned about foreign solicitation
Indeed, before his July 27, 2016, request of Russia, Trump had been put on notice that it was illegal for his presidential campaign to solicit support from foreign interests. On June 29 and July 22, 2016, watchdog groups (including one led by one of the authors) filed complaints with the Federal Election Commission and the Justice Department, respectively, against Trump’s presidential campaign committee for illegally soliciting financial support from parliamentarians in countries around the world, including Iceland, Scotland, Australia and Great Britain. Multiple news organizations had reported that Trump’s campaign was violating the ban on foreign solicitations by emailing fundraising solicitations to foreign nationals. The Trump campaign did not respond to press requests for comments on the FEC complaint.
Then-candidate Trump, self-described as deeply familiar with campaign finance laws and on notice that his campaign committee was illegally soliciting foreign support, nonetheless proceeded to publicly request assistance from Russia to find information to hurt Clinton and help his campaign.
Some may say Trump’s invitation was merely campaign rhetoric or hyperbole, which should not be criminalized. But that is to ignore the plain language of the law and its purpose: to protect the United States from the influence of foreign countries in our elections. The statute says, “It shall be unlawful for … a person to solicit, accept or receive a contribution or donation … from a foreign national.”
In using the word “or,” the statute makes plain that the act of solicitation in and of itself is a violation. The danger of Trump’s words can be seen in the fact that Russia took them both seriously and literally.
Justice Department says Trump can’t be indicted
If this were an isolated incident, that would be one thing. But the Cohen revelations expose a pattern of campaign finance law violations by Trump, complete with a tape of him discussing the cover-up: evidence he knew what he was doing was wrong. Then there are the many other allegations of illegal conduct, including substantial evidence of obstruction of justice. The president appears to operate with blatant disdain for the nation’s laws, and his alleged violation in soliciting campaign help from Russia is only one instance.
The president should not be immune from accountability for this alleged misconduct. Federal prosecutors should be free to charge him for any campaign finance offenses grounded in probable cause, including, if they see fit, the July 27 solicitation of Russia. Unfortunately, they are currently blocked from doing so by opinions from the Justice Department’s Office of Legal Counsel that a sitting president may not be indicted. We join eminent experts in disagreeing with those opinions, and this latest possible offense should be one more nail in his coffin.
Trump campaign and business could be charged
Even though Justice is unlikely to change its mind on charging Trump, next best options are available. The Trump campaign is legally responsible under principles of vicarious liability for the statements of its head and so could be indicted. The Russia solicitation could be included in an indictment featuring other counts, such as charging the campaign and the Trump Organization for the separate alleged hush money violations described by Cohen.
No Justice Department policy prohibits prosecutors from naming the president as an unindicted co-conspirator in such an indictment. And with a five-year statute of limitations, he could still be prosecuted for these alleged knowing and willful 2016 offenses should he fail to seek or secure re-election in 2020.
Campaign finance laws are enacted to protect the American people. They do not exist for candidates to choose whether to comply with the laws or not as they see fit. No one is above the law — not an ordinary citizen and not the president of the United States. President Trump must be held accountable for his allegedly illegal activities — for his apparently knowing and willful violations of the nation’s campaign finance laws.
Fred Wertheimer is founder and president of Democracy 21. Norman Eisen is chairman of Citizens for Responsibility and Ethics in Washington, a senior fellow at Brookings Institution and author of “The Last Palace.” Follow them on Twitter: @FredWertheimer and @NormEisen.