The crux of the issue under campaign-finance law is whether stolen emails could constitute “a thing of value” for the purpose of the foreign donor prohibition. Since the Trump Tower meeting was revealed in 2017, this has been a subject of active debate among campaign-finance scholars. Former White House counsel Bob Bauer has argued that “dirt on Clinton,” otherwise known as opposition research, could very well be a thing of value for campaign-finance-law purposes. Ex-FEC Commissioner Bradley Smith has argued to the contrary that it could not. On page 187, the Mueller report noted that no court case has yet applied the foreign-donor ban to opposition research and that being the first to apply the law this way may raise First Amendment questions.
Even under Bauer’s standard, it’s easy to understand the special counsel’s choice not to charge Trump Jr. and Kushner, who appeared to be sufficiently witless to avoid criminal liability. But Mueller pulled some punches that he didn’t have to—especially in the choice not to charge Paul Manafort with campaign-finance violations. Manafort has been around the block. He had worked as a lobbyist and lawyer in political campaigns in the United States and around the world for decades. Not taking things from foreigners is Campaigning 101. If anyone should have known that, it should have been Manafort. But even he wasn’t charged with violating campaign-finance laws by the special counsel.
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