Yes, violating certain campaign finance laws is a criminal offense

If the documents that Donald Jr. was emailing about are deemed valuable, soliciting them is a criminal offense. A legal expert weighs in.

Jay Sekulow, one of the president’s private lawyers, has been making the rounds of radio, and network and cable TV shows trying to put out the fire set by Donald Trump Jr.’s release of emails which confirm that Trump Jr., Jared Kushner and Paul Manafort met with Russian lawyer Natalia Veselnitskaya, who claimed to have compromising material about Hillary Clinton during the 2016 presidential race.

On The Sean Hannity Show, Mr. Sekulow makes many claims about why this meeting is not a crime. One of them seemed to be a claim (the audio is a bit garbled) that the federal campaign finance laws are not criminal laws or that violating them is not a crime. If this is what Sekulow meant, he is wrong.

While most of campaign finance laws are enforced administratively (when they are bothered to be enforced) by the Federal Election Commission (FEC) with civil fines, the Department of Justice (DOJ) has concurrent criminal jurisdiction over willful violations of the campaign finance laws, including the longstanding prohibitions on federal candidates receiving contributions from foreigners.

This is the part of the law (52 USC § 30121), which appears to have been violated by the Trump campaign when they solicited foreign campaign contributions from members of Parliament in the United Kingdom and elsewhere in the world in the summer of 2016. If special counsel Robert Mueller is looking at potential crimes by the Trump campaign, then that is some low hanging fruit as MPs literally complained about it in real time.

But this law could have also been violated in the Donald Trump Jr./Natalia Veselnitskaya meeting. As President Obama’s former White House counsel Robert Bauer explains at the Just Security blog: The criminal prohibition on foreign contributions to federal candidates includes the solicitation of such contributions. And the law is not limited to asking for classic contributions like cash money. He notes that the law covers “things of value” as well. Should Mr. Trump (the younger), or Kushner, or Manafort or even Veselnitskaya be charged with violating this part of the law, they will likely argue that the offer of damaging information about Secretary Clinton wasn’t “a thing of value.” But that’s not the same thing as saying 52 USC § 30121 is not a criminal statute.

As I show in a forthcoming law review article, “Dark Money As a Political Sovereignty Problem,” the DOJ has prosecuted individuals for violating the prohibition on foreign political contributions. DOJ’s interest in prosecuting this part of the law peaked under Attorney General Janet Reno’s tenure in the late 1990s when she established the Campaign Financing Task Force to investigate allegations of campaign financing violations in the 1996 election cycle that supported candidate and sitting President Bill Clinton’s campaign. As an old press release still available on DOJ’s website shows, “26 people and two corporations [were] charged by the Campaign Financing Task Force” many of them for violating the foreign prohibition.

But DOJ has not given up on enforcing this part of the law. In 2009, the DOJ charged a man for making $60,000 in illegal foreign contributions to presidential candidates. As recently as 2014, the DOJ charged a man for making $600,000 in illegal foreign contributions to federal candidates. And in 2016, a Florida man pled guilty to funneling $80,000 in illegal foreign campaign contributions to candidate and sitting President Obama’s campaign in 2012.

The US Supreme Court clearly recognizes that campaign finance laws are criminal laws. Indeed, the present Supreme Court often points to the criminal consequences as one of the problems with campaign finance laws. For example in Citizens United v. FEC (2010), the majority complained about the corporate expenditure ban that was invalidated by the case, that “[t]he law before us is an outright ban, backed by criminal sanctions.”

And if Mr. Trump (the younger), or Mr. Kushner, or Mr. Manafort, or Ms. Veselnitskaya are hoping that the Roberts Supreme Court’s hostility to campaign finance law will save them in the end, they need to get their lawyers to look up Bluman v. FEC, a little noticed case from 2012. In Bluman, the Supreme Court upheld the prohibition on contributions from foreigners in federal elections, the very law at issue here.

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Ciara Torres-Spelliscy, a Brennan Center Fellow and a professor at Stetson University College of Law, is the author of Corporate Citizen? and Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics. She’s a former board member of the National Institute of Money in State Politics. Follow her on Twitter: @ProfCiara.

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