“ANY THING OF VALUE”

Coordination and Fake News Would Have Violated

U.S. Election Law

Buried in our federal election law is a prohibition against any foreign national providing monetary contributions or “any other thing of value” in connection with elections in the United States.  (See also 52 U.S.C. s. 30121).  This prohibition is often referred to as the “foreign national ban.”  Although the term “other thing of value” is not specifically defined in the law, the Federal Election Commission (FEC) has interpreted it so broadly that even some volunteer services fall within it.  For example, the FEC has previously prohibited a foreign artist from donating his services in connection with a fundraising campaign for a Senate candidate.

If the Trump campaign knowingly solicited or accepted a “thing of value” from a foreign entity whether from individuals, governments, political parties, or corporations or helped a foreign entity violate the ban, then the Trump campaign would have violated the foreign national ban, which has been upheld as valid and constitutional.  See Bluman v. FEC, 565 U.S. 1104 (2012) (reasoning that the foreign national ban is narrowly tailored and supported by the inherent right of the United States to democratic self-government).  In other words, according to federal law, foreign powers should not be allowed to meddle in our electoral process.  

Currently, no doubt exists that Russia interfered with the 2016 election.  In fact, Russian President Vladimir Putin, himself, ordered the attack to help elect Donald Trump.  If the Trump campaign knowingly solicited or even just accepted Russia’s aid in hacking the DNC or releasing the DNC’s internal emails, it would have been a violation of the foreign national ban by having received a “thing of value” – i.e., Russian assistance – from a foreign national.  Likewise, if the Trump campaign knowingly solicited help from the Russian government or individuals to provide even uncompensated technical services, such as the dissemination of fake news through the use of bots or Russian satellites, the campaign would have violated the foreign national ban.  And, finally, if the Trump campaign knowingly assisted or accepted assistance from a foreign national or government, such as Russia, in analyzing voter data or in developing election-related strategies, the campaign would have violated the federal election laws.

Consequently, the FBI, as part of its investigation into Russian meddling in the election, may be looking at Russia’s use of paid ads and “bots” to spread pro-Trump and anti-Hillary propaganda and fake news stories.  It may also be investigating what, if any, coordination existed between Russia and right wing media sites linked to the Trump campaign, such as Breitbart, to distribute the fake stories to targeted voters and to blitz social media.  Indeed, Time Magazine reported on May 18, 2017 that:

Russia plays in every social media space.  The intelligence officials have found that Moscow’s agents bought ads on Facebook to target specific populations with propaganda.  “They buy the ads, where it says sponsored by–they do that just as much as anybody else does,” says the senior intelligence official.  (A Facebook official says the company has no evidence of that occurring.)  The ranking Democrat on the Senate Intelligence Committee, Mark Warner of Virginia, has said he is looking into why, for example, four of the top five Google search results the day the U.S. released a report on the 2016 operation were links to Russia’s TV propaganda arm, RT.  (Google says it saw no meddling in this case.)  Researchers at the University of Southern California, meanwhile, found that nearly 20% of political tweets in 2016 between Sept. 16 and Oct. 21 were generated by bots of unknown origin; investigators are trying to figure out how many were Russian.

If the Trump team knowingly solicited or accepted the Russians’ assistance in this regard, it would have violated the foreign national ban.

As we know from press reports, websites, and FEC documents1, several complaints have already been filed against the Trump campaign for other violations of federal election laws, including complaints that the campaign: 1) filed false campaign reports; 2) failed to timely register Trump as a candidate for 2020 before soliciting donations for his re-election campaign; 3) improperly used resources from the Trump Organization to assist in and fund the 2016 campaign; 4) failed to obtain basic donor information; and 5) accepted anonymous donations in excess of the legal limits, which may have included funds from Russians or other foreign nationals.

All of these possible election-law violations, including the potential violations of the foreign national ban, not only tend to undermine faith in America’s elections, but also the very fairness and integrity of the electoral process as a whole.  Put simply, this investigation is too important to the stability and independence of our Republic to leave it in the hands of partisans who have little to no political will to follow the facts wherever they may lead.  Given the stakes involved, the American people deserve to know the extent to which the Russian Government or other foreign nationals interfered with the election and whether the Trump campaign, its affiliates, or even Republican party officials themselves, violated United States election law in the process.  This kind of unbiased investigation aimed at getting to the truth of the matter can only be conducted by an Independent Commission.

Although a Special Counsel has been appointed to investigate any potential crimes related to Russia’s interference in the 2016 election, that investigation will largely be conducted in secret.  If the Special Counsel concludes that there is insufficient evidence of a criminal violation or that the evidence of a crime cannot be obtained, the American people may never know the full extent of Russia’s meddling and whether any American citizens knowingly solicited or benefitted from that interference in violation of federal election law.  Thus, the only way the United States citizenry can be assured that the full extent of Russia’s involvement in our election will be explored, revealed, and, with diligence, prevented in the future is through a bipartisan, Independent Commission.  

 

Notes

  1. See http://thehill.com/blogs/ballot-box/presidential-races/262701-gop-lawyer-files-fec-complaint-against-trump; http://www.campaignlegalcenter.org/document/fec-complaint-trump-filed-false-campaign-report-violation-election-law; http://lawnewz.com/high-profile/complaint-filed-against-trump-for-alleged-illegal-post-election-fundraising/; http://www.politicususa.com/tag/fec-complaint-against-trump, all last accessed on June 27, 2017.
By | 2017-07-01T23:24:05+00:00 June 27th, 2017|

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