If you want to understand American election law, you need only start with one underlying principle that explains seemingly contradictory interpretations over the last year: The purpose of election law is to punish Donald Trump’s allies for 2016 and prevent his victory in 2020.
Don’t believe me? Consider this public statement: “Let me make something 100% clear to the American public and anyone running for public office: It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election….This is not a novel concept,” partisan Democrat and Perkins Coie law firm alumnus Ellen L. Weintraub, who sits on the Federal Election Commission, wrote in a statement.
Was she writing about the October 25, 2017 complaint filed against the Democratic National Committee and Hillary for America that pointed to Clinton using Perkins Coie to use foreigners to help the Clinton campaign defeat Trump? Of course not! You see, when Clinton uses foreigners to meddle in elections, all the really smart people argue it’s perfectly legal. When Trump hypothetically entertains the same idea in a recent ABC News interview, he’s an “enemy of the state.”
Weintraub recently joined the dogpile after the president was asked whether he would accept opposition research from a foreigner during the next election campaign cycle. As Politico noted, “Trump‘s comments garnered fierce backlash from Republicans, Democrats and former law enforcement officials…. Trump made the comments while responding to attention over his son Donald Trump Jr., who met in Trump Tower with Russian nationals offering dirt on then-Democratic candidate Hillary Clinton in the lead-up to the 2016 election.”
As I have repeatedly noted, both of the Russians with whom Donald Trump Jr. met at Trump Tower had a longstanding history with opposition research group Fusion GPS, and Fusion GPS provided the handouts the Russians brought to the meeting. After Perkins Coie hired Fusion GPS on behalf of the Hillary Clinton campaign, Fusion GPS appears to have enlisted the help of these two additional foreigners to frame the Trump campaign. But again, it’s only a violation of election law, in Weintraub’s view, if it’s done to help Trump.
Writing for the Washington Post, lawyer Eugene Volokh challenged Weintraub’s logic that merely providing information amounts to a “campaign contribution,” and that accepting information from a foreign national is therefore a crime. Volokh wrote:
It would raise obvious First Amendment problems…Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters? The Supreme Court did affirm (without opinion) a federal court decision in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), that upheld a ban on contributions and independent expenditures by non-citizen non-permanent-residents, on the theory that the government can use such a ban to limit foreign influence on American elections. But the panel decision expressly stressed that it was limited to the restriction on spending money. And it seems to me that restrictions on providing information to the campaigns — or on campaigns seeking such information — can’t be constitutional.
The complaint against Clinton involving Perkins Coie (which Weintraub’s FEC continues to ignore) alleges “the DNC and Hillary for America reported dozens of payments totally millions of dollars to the law firm Perkins Coie with the purpose described as ‘Legal Services’ or ‘Legal and Compliance Consulting,’ when in reality, at least some of those payments were earmarked for the firm Fusion GPS, with the purpose of conducting opposition research on Donald Trump. By failing to file accurate reports, the DNC and Hillary for America undermined the vital public information role that reporting is intended to serve.”
The Perkins Coie-related complaint will likely only be investigated if there is a unanimous vote by the FEC membership. The current Democratic appointee to the FEC, the same Ellen L. Weintraub, was “Of Counsel to the Political Law Group of Perkins Coie LLP” prior to coming to work for the FEC (in 2002).
Remember, that same Perkins Coie hired Fusion GPS to produce the Trump-Russia dossier for Clinton’s campaign. While at the FEC, Weintraub helped push the narrative with published a position statement lamenting “Russia’s interference in the 2016 election.” No word on whether Weintraub has recused herself from the Perkins Coie-related complaint.
In December 2017, a separate complaint against the Clinton campaign was filed. It alleged a scheme to launder $84 million in campaign funds through state parties back to the Clinton campaign in order to circumvent donor limits. Although the allegations clearly originate with a partisan political group, the allegations rely upon the DNC’s own public filings and former DNC chairwoman Donna Brazile’s public admissions on how the DNC co-mingled money with the Clinton campaign.
The Washington Post’s review of the allegations conceded that the essential allegations are corroborated by public information. Weintraub is also ignoring this complaint.
Contrast the treatment of the complaints against Clinton with the lightning-fast prosecution of a very dubious campaign finance complaint against the president’s former attorney, Michael Cohen, whose alleged violations closely resembled those of Clinton supporter Lisa Bloom. Bloom appears to have arranged for unreported payments to women in exchange for making public accusations against Trump.
Cohen’s payments to Daniels were reported, and he was prosecuted. The payments to Trump’s accusers were not.
As I previously wrote, “Aren’t these laws supposed to be written-down so one can know in advance whether one might be subject to criminal prosecution for violations of rules that we agree-upon in advance? Shouldn’t these rules apply equally regardless of whether your name is ‘Trump’ or ‘Clinton?’ With Cohen and Bloom appearing to do the exact mirror image of the same thing in the same election with such dramatically different legal outcomes, one cannot help but wonder whether [the DOJ] is indeed applying laws ‘equally to everyone, without regard to rank or status.’”
International standards of election fairness command that a nation must have a “sound legal framework and an impartial and effective election administration,” and that both parties have the opportunity to compete without arbitrary restrictions and discrimination. But that was under the old pre-Trump system. There’s only one law now: Get Trump!