Welcome to Pay Dirt—exclusive reporting and research from The Daily Beast’s Lachlan Markay on corruption, campaign finance, and influence-peddling in the nation’s capital. For Beast Inside members only.
Special Counsel Robert Mueller’s investigation is over, but Trumpworld isn’t out of the legal woods yet. Campaign-finance watchdogs say Mueller’s report, released Thursday, is all the evidence federal regulators need to levy penalties against the president’s political apparatus.
Mueller declined to bring charges against two key figures in the president’s orbit, Donald Trump Jr. and Jared Kushner, over allegations they illegally solicited foreign campaign contributions at an infamous June 2016 meeting in Trump Tower. But Mueller presented enough evidence of a violation, says Craig Holman, a government-affairs lobbyist for the group Public Citizen, for the Federal Election Commission to bring civil charges against the Trump campaign.
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“Bottom line is that Mueller quite well documents that Donald Trump Jr. and other senior campaign staff very likely violated [a federal] ban on accepting foreign contributions for campaign purposes,” Holman said in an email. “Mueller decided not to file a criminal complaint because of the high burden of proving knowing and willful intent. Mueller seems to believe that the Trump campaign, and especially Donald Trump Jr., may well be ignorant of campaign-finance laws. However, a civil action by the FEC is in order given the lower burden of proof and that such abuses seem to be ongoing.”
Public Citizen plans to lodge a complaint with the FEC based on Mueller’s findings. Though no one will face criminal charges as a result, the commission can impose civil penalties such as fines if it determines that Don Jr., Kushner, or others tried to illegally obtain dirt on Trump’s political opponents.
The Mueller report adds some detail to what was already known about the June 9, 2016, meeting in Trump Tower involving three top Trumpworld figures—Don Jr., Kushner, and Paul Manafort—and a pair of lawyers who, Don Jr. was told, were there on behalf of the Russian government to offer damaging information on Hillary Clinton just months before the election.
“If it’s what you say I love it, especially later in the summer,” Don Jr. famously replied when told he’d be presented with Clinton opposition research. That sort of assent to an offer of campaign assistance by a foreign national—let alone a foreign government—flies in the face of federal election laws barring foreign in-kind contributions to political campaigns.
Mueller’s report cites a number of legal provisions that “support the view that candidate-related research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply.” At the same time, though, the report notes that it would be difficult for prosecutors to assess exactly how much a piece of damaging information would have been worth—and therefore whether it would’ve exceeded the $2,000 minimum for criminal prosecution—particularly because the Russian representatives at the Trump Tower meeting never ended up actually providing such information.
The report makes clear that Don Jr., Kushner, and Manafort were expecting such information to be furnished, and took the meeting for that purpose. Taken together with Don Jr.’s enthusiastic solicitation of that information, there’s significant information pointing to an attempt to solicit what would have amounted to an illegal in-kind contribution—which is against the law whether or not the information was actually provided.
But there’s an additional, and even more difficult, legal hurdle that prosecutors must clear in order to successfully prosecute a criminal violation of campaign-finance law. The perpetrator must have knowingly and willfully violated the law—in order words, he must have known that it was illegal, and moved forward anyway.
There simply wasn’t ample evidence to demonstrate that in the case of the Trump Tower meeting, Mueller concluded. “The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context,” it concedes.
That’s good news for all Trumpworld parties involved. But the threshold for wrongdoing in an FEC enforcement case doesn’t need to meet that same burden, explained Brendan Fischer, the director of federal and FEC reform programs at the Campaign Legal Center.
“For the [Federal Election Commission] to pursue civil penalties—i.e. fines—against Don Jr., it need not establish the ‘willful’ element that posed a challenge for Mueller,” Fischer explained. “For the FEC to seek civil penalties, it need only find that Don Jr. solicited a contribution from a person he knew was a foreign national—and I think that has been established.”
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