Thursday, July 13, 2017

Professor Turley

For weeks I have been endeavoring to get a read on the election law prohibition against giving "substantial assistance" to a foreign government making contributions or expenditures to influence elections in the United States, whether Trump's asking Russia to interfere in the election without private meetings between Trump campaign personnel and Russians related to the Russian interference was required, and Department of Justice thinking about the same. I was not able to get a response from persons such as Jonathan Turley, Jeffrey Toobin and Alan Dershowitz. This is detailed at Bob Bauer.

On Tuesday Jonathan Turley published an article in The Hill giving his views on the Don Jr. situation after Don Jr. posted his email chain..
My main takeaway from the article is that there are significant First Amendment considerations in criminalizing the getting and sharing of information.

Yesterday, Jonathan Turley was on Morning Joe. He expressed his view that the greatest legal risk right now was whether persons had been truthful in prior statements to Congress, FBI, etc. Professor Turley repeated his First Amendment concerns about criminalizing the getting and sharing of information.

I continue interested in the Federal election law prohibitions, particularly taking into account First Amendment considerations.

I have read 11 CFR 110.20 - Prohibition on contributions, donations, expenditures, independent expenditures, and disbursements by foreign nationals (52 U.S.C. 30121, 36 U.S.C. 510) and have done a limited read of related regulations.

Professor Turley has come at the prohibitions from the contributions side and what is a "thing of value." It can also be approached from the side of the prohibitions on foreign governments making expenditures in U.S. elections and on persons providing "substantial assistance."

I have not found a definition of "expenditure." I have seen the use of the the term "expenditure" in the definition of independent expenditures that an independent expenditure is an expenditure for a communication "expressly advocating the election or defeat of a clearly identified candidate that is not made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party or its agents." 11 CFR 100.16(a).

Honing in on First Amendment considerations, the Federal election law prohibits the Russian government from paying for the airing of campaign commercials on behalf of a candidate, and it does not seem that the Russian government has First Amendment rights which makes that prohibition unconstitutional.

Next consider the broadcaster. On its face, the broadcaster would seem to violate the "substantial assistance" prohibition if it knows the Russian government is paying for the commercials. The question, however, arises whether the broadcaster has First Amendment rights to air the commercials.

To answer this question, consideration might be given to the matter of classified information.  My understanding is there is no First Amendment right protecting someone in the government giving out classified information, and that act can be criminalized. At the same time, the news media is protected by the First Amendment in publishing the information.

Now turn back to the broadcaster which airs the Russian government's campaign commercials. If there is different treatment compared to the classified information situation, and the broadcaster can be prohibited from airing the commercials, there needs to a First Amendment "policy" explanation of the different treatment, presumably connected to different contexts of, in the one case, the Russian government trying to influence a U.S. election, and, in the other case, the matter being exclusively domestic parties involved.

Other situations involving the dissemination of information can be considered. Say a foreign government pays United States citizens to engage in door to door electioneering for a candidate, and the citizens know that it is a foreign government paying them. Further say that the candidate knows this is happening, and encourages the citizens to do what they are doing.

Say the foreign government has done "oppo" research and pays U.S. citizens to disseminate the same via the social media. Say the candidate knows this is happening, and encourages the citizens to do what they are doing.

Say a foreign government is illegally hacking information in the United States for the purpose of using the information to affect an election, and incurs expenses in doing the hacking and in disseminating the information via the social media or in other ways in the United States. Say a candidate knows that is happening and publicly encourages it.

In the above situations, the getting and sharing of information is involved. Professor Turley is right in having significant First Amendment concerns about any of the above situations being criminalized. It would seem, though, that there can be countervailing considerations so that the First Amendment does not insulate all the actions and activities in question, and "substantial assistance" to the foreign government can be prohibited.

If Robert Mueller is considering whether there have been Federal election law violations by Don Jr. and by the Trump campaign beyond just the Don Jr. meeting, it would seem he will need to do a lot of wrestling with Professor Turley's First Amendment considerations.

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