The report by special counsel Robert Mueller includes accounts of dozens of contacts between senior members of the Trump campaign and several Russians, including those who said they were Russian government agents, for the purpose of electing Donald Trump and defeating Hillary Clinton. It includes reports of secret meetings with campaign officials, including two members of the Trump family, which Mueller concludes violate campaign finance laws. This is, by any ordinary definition of the word “collusion.”
Therefore, it is wrong to say Mueller found no collusion, as 200 pages of the report provide damning detail of just that. Mueller, a careful lawyer using lawyerly terms precisely, found that he was commissioned by the Justice Department to investigate whether federal crimes occurred, that “collusion” is not a legal term and is not itself a federal crime, that in making decisions about prosecutions he must interpret “collusion” as engaging in a “conspiracy” to violate campaign finance laws, and that such felony conspiracy charges require prosecutors to show “beyond a reasonable doubt” the individuals “knowingly and willfully” broke the law.
{mosads}Mueller then detailed at length why he does not think the evidence meets this appropriately very high prosecutorial standard for bringing criminal felony charges. This is quite different than saying no collusion occurred. The report does, however, provide a roadmap for the changes the Federal Election Commission and Congress must make in our laws to ensure that foreign nations, as well as American candidates and campaigns, never engage in this sort of activity in future elections.
The Russian actions and connivance shown by the Trump team threaten our basic values of American democracy. The kind of foreign interference we witnessed in the 2016 election was an expressed fear of the Founders dating back to the 1796 election. The investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome. Russian actors had leveraged the business relationships of candidate Trump to access his inner circle.
Senior officials of the Trump campaign, including Donald Trump Jr. and Jared Kushner, made multiple contacts with Russians. Trump campaign manager Paul Manafort even briefed a former business associate with ties to Russian intelligence on polling data and on plans for the very same “battleground” states that proved crucial to the eventual Trump victory.
The openness of the Trump campaign to obtain help from the Russian government is most clearly illustrated by communications of Trump Jr. regarding the June 2016 meeting at Trump Tower. He was told a “Russian government attorney” wanted to meet to “provide the Trump campaign with some official documents and information that would incriminate Hillary,” provided as Russian government support for Trump. Rather than going to the FBI, Trump Jr. replied, “I love it,” then told senior campaign staff, and brought Manafort and Kushner to the meeting itself. The report found that the conduct of Trump Jr. implicates the ban on soliciting a contribution from an individual that he knew was a foreign national.
Yet, Trump Jr. was not charged. Although the courts have not squarely addressed the issue, the report acknowledged that opposition research should be treated as an in-kind contribution that is subject to the foreign national ban. As Mueller notes, a foreign government that directed its intelligence apparatus towards digging up dirt on American political candidates and “provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.”
However, the main reason Mueller did not charge Trump Jr. is because he could not establish that the violation was done “willfully,” meaning that he could not prove that Trump Jr. knew that asking the Russian government for “dirt” on an opponent was illegal. Notably, Mueller had never called Trump Jr. before the grand jury to press him on his knowledge of the law.
Establishing willfulness is only necessary for criminal campaign finance violations. For the Federal Election Commission to seek civil penalties, it simply needs to find that Trump Jr. solicited a contribution from a person he knew was a foreign national. As the July 2017 federal complaint by the Campaign Legal Center, filed with Common Cause and Democracy 21, alleged, and as Mueller has demonstrated, that has been established.
The Federal Election Commission should take action on this pending complaint, but the problem extends much wider. The special counsel report described the wide ranging digital Russian electioneering efforts, which should prompt Congress to update campaign finance laws for the 21st century. Finally, we should all be demanding that candidates who are vying to represent us pledge not to accept help from foreign powers.
Our long standing concerns about foreign interference are rooted in democracy and national sovereignty. Americans of all political stripes, regardless of who they voted for in 2016, should look beyond one election outcome and call on Congress to protect our country from any foreign entity that may use the Russian model to intervene in 2020 and beyond.
Trevor Potter (@TheTrevorPotter) is president of the Campaign Legal Center and a former chairman of the Federal Election Commission.