Back home in the Bronx is where I first heard the old saw about the Irishman who, coming upon a donnybrook at the local pub, asks a bystander: “Is this a private fight or can anybody join?”
I was a much younger fellow then. The prospect becomes less alluring with age, so I have some trepidation stepping in between two old friends, Andrew Napolitano and Joe DiGenova. Through intermediary hosts, the pair — Napolitano a former New Jersey Superior Court jurist and law professor, DiGenova a former United States Attorney for the District of Columbia and prominent defense lawyer — brawled this week on Fox News (where I, like they, contribute regularly).
I’m going to steer clear of the pugnacious to-ing and fro-ing. Let’s consider the intriguing legal issue that ignited it.
Judge Napolitano argues that the July 25 conversation between President Trump and Ukrainian President Volodymyr Zelensky contains the makings of a campaign-finance crime. He highlights Trump’s request for Ukraine’s help in investigating then–vice president Joe Biden. In 2016, Biden pressured Kyiv to drop a corruption investigation of Burisma, a natural gas company that paid Biden’s son, Hunter, big bucks to sit on its board.
Biden, of course, is one of the favorites for the Democratic presidential nomination. Napolitano reasons that the information Trump sought from Ukraine would be a form of “opposition research” that could be seen as an in-kind donation to Trump’s reelection campaign, which should be deemed illegal because the law prohibits foreign contributions and attempts to acquire them. (Napolitano also raised the “arguable” possibility of a bribery offense, on the theory that Trump was withholding defense aid as a corrupt quid pro quo to get the Biden information. But he emphasized the foreign contribution issue. That is his stronger argument, and I am focusing on it, given that the Trump-Zelensky transcript does not support a quid pro quo demand; plus bribery, in any event, raises the same “thing of value” proof problems addressed below.)
DiGenova strongly disagrees. Though there wasn’t much time to elaborate, he is clearly relying on the lack of past campaign-law prosecutions on similar facts. DiGenova is also voicing the prudent conservative hostility to campaign-finance laws: Any expansion of criminal liability would necessarily restrict political speech, the core of First Amendment liberty.
I’m with DiGenova on this, but it’s a closer question than he suggests. Napolitano’s construction of the campaign laws, while not wholly implausible, is purely academic. It ignores real-world concerns about free speech and the prosecutor’s burden to prove intent.
Most of the commentary on this has been very politicized (surprise!). For dyed-in-the-wool anti-Trumpers, no technicality is too trifling to be a felony. For the Trump base, it’s all a witch hunt. In light of this, the most helpful source we can turn to is the Mueller Report. (File in: Sentences I’d Have Bet My Life I’d Never Write.)
Special Counsel Robert Mueller’s team overflowed with partisan Democrats, and their report could have been entitled “Roadmap to Impeachment.” While they faced complications (that I’ve addressed) in making a case against the president, the prosecutors were not inhibited when it came to other subjects of the investigation. They’d have loved to nail Donald Trump Jr. But the only thing they had was the notorious Trump Tower Meeting of June 2016, when Don Jr. orchestrated a meeting with a Kremlin-tied lawyer (Natalya Veselnitskaya) in an effort to obtain Russian dirt to be used against Hillary Clinton. Veselnitskaya supplied information, but it was a dud.
The campaign-finance offense that Napolitano urges be charged against President Trump appears to be the same one Mueller considered charging against Don Jr. The Mueller team’s analysis (Vol. 1, pp. 186-187) is thus on point. And it is frustratingly ambiguous — as befits the constitutionally dubious campaign-finance laws.
Two offense elements proved to be stumbling blocks for the prosecutors. The first is the question whether opposition research is a “thing of value” under federal law. Mueller’s team assumed that, in theory, it might be (the Napolitano view), but that to interpret it as such would break new ground and raise troubling First Amendment issues (the DiGenova position).
The second problem was the intent element. As I’ve observed before, regulatory crimes are not innately wrong (in contrast to, say, murder or robbery). They are illegal only because we choose to make them illegal (for you Latinists out there, they are malum prohibitum). Because the conduct is not wrong in itself (malum in se), the law requires a higher degree of malevolent intent before it can be criminalized. Prosecutors must prove willfulness, which very nearly reverses the adage that “ignorance of the law is no excuse.” The defendant must be shown to have known that his intentional conduct was illegal — not merely unsavory but actually prohibited by law. The Mueller team concluded that they could not have hoped to prove willfulness beyond a reasonable doubt.
So, while there might be some conceivable scenario in which acquiring information from a foreign source for use in a campaign could be a federal crime, it is highly unlikely — so unlikely that some Type A prosecutors wisely decided that the huzzahs they’d have gotten for indicting the president’s son were outweighed by the humiliation they’d endure when the case inevitably got thrown out of court.
The Mueller report is also worth considering because the campaign-finance charge the prosecutors rejected is stronger than would be any similar charge against President Trump arising out of the Zelensky call. That, no doubt, is why the Justice Department summarily declined prosecution.
To hear the media-Democrat complex tell it, DOJ declined because it is beholden to the president and Attorney General Barr is acting as Trump’s lawyer, not the government’s chief prosecutor. No one who actually took five minutes to read the relevant section of the Mueller Report would see it that way. Moreover, the fact that the president is president complicates matters not only politically but legally.
Trump detractors hyper-focus on the president’s request that President Zelensky provide Attorney General Barr with any information Ukraine might have about Biden twisting arms to quash an investigation involving his son’s cashing in on dad’s influence. I say “hyper-focus” because there was a lot more to it than that. Long before the conversation came around to the Biden topic, the “favor” that Trump asked for was Zelensky’s assistance in Barr’s ongoing investigation of the genesis of the Trump-Russia investigation.
No matter how much Democrats seek to discredit that probe and the AG overseeing it, it is a legitimate investigation conducted by the United States Department of Justice, which has prosecutors assigned and grand jury subpoena power. It is examining questionable Justice Department and FBI conduct. It is considering whether irregularities rise to the level of crimes. It will be essential to Congress’s consideration of whether laws need to be enacted or modified to insulate our election campaigns from politicized use of the government’s counterintelligence and law-enforcement powers.
I mention all this because it is a commonplace for the government to seek assistance from foreign counterparts for ongoing federal investigations.
Indeed, as Marc Thiessen pointed out this week in an important Washington Post column, Democratic senators pressured Ukraine to cooperate with the Mueller probe — notwithstanding the obvious potential electoral ramifications and the specter of “foreign interference in our democracy.” These requests for assistance often occur at the head-of-state level. When I was a federal prosecutor in the mid-nineties, for example, the FBI and Justice Department asked President Clinton to intervene with Saudi authorities to assist the investigation of Iranian complicity in the Khobar Towers bombing.
There is nothing wrong with our government’s requesting the assistance of foreign governments that have access to witnesses and evidence relevant to an ongoing Justice Department investigation. The president is the democratically elected, constitutionally empowered chief executive: There is nothing his subordinates may properly do that he may not do himself (it is his power that they exercise). And the president is never conflicted out of executive branch business due to his political interests. There is no legal or ethical requirement that the Justice Department be denied potentially probative evidence because obtaining it might affect the president’s political fortunes.
There was no impropriety in President Trump’s asking Ukraine’s president to assist the Justice Department’s investigation of Russiagate’s origins. Okay, you say, but what does that have to do with Biden?
Well, Biden was the Obama administration’s point man in dealing with Kyiv after Viktor Yanukovych fled in 2014. That course of dealing came to include Obama administration agencies leaning on Ukraine to assist the FBI in the investigation of Paul Manafort, Trump’s campaign chairman. So, Biden’s interaction with Ukraine is germane: The fact that he had sufficient influence to coerce the firing of a prosecutor; the fact that, while Biden was strongly influencing international economic aid for Kyiv, a significant Ukrainian energy company thought it expedient to bring Biden’s son onto its board and compensate him lavishly — although Hunter Biden had no experience in the industry.
That aside, I do not understand why there has not been more public discussion of the Foreign Corrupt Practices Act in light of the instances of Hunter Biden conveniently cashing in with foreign firms while his dad was shaping American policy toward those firm’s governments. As we saw with the collusion caper, it does not take much evidence of any crime for the FBI and the Justice Department to open an investigation and scorch the earth in conducting it. And if it would have been legit for the Justice Department to open an FCPA investigation of one or both of the Bidens, then it was appropriate for President Trump to ask President Zelensky to help the Justice Department determine if an FCPA crime took place – even if doing so could have affected the 2020 fortunes of Biden and Trump.
Don’t get me wrong: I am not rooting for Joe Biden or his son to be subjected to investigation and prosecution. I agree with Attorney General Barr that there has been too much politicization of law enforcement and intelligence. In the absence of a concrete, patent, and serious violation of the criminal law, I want the Justice Department and the FBI out of politics – which would be better for them and for politics. If you think there is an indecorous heavy-handedness to the way Donald Trump and Joe Biden conduct foreign policy, that’s fine – go vote against them on Election Day. We don’t need creative prosecutors deciding elections by testing the boundaries of abstruse statutes.
Neither, however, do I believe in unilateral disarmament. There is at least as much basis for opening an FCPA investigation against the Bidens as for opening campaign-finance investigations against the Trumps. If I had my druthers, all of this nonsense would end. But as I detailed earlier this week, we have one candidate for the presidency — a once-serious legal scholar and practitioner — who publicly and straight-faced says Trump’s call with Zelensky could rate the death penalty. As we saw in the late 1990s, when Bill Clinton got to experience the independent-counsel statute up close and personal, maybe it takes Democrats being hoisted on their own petard before we finally say: This has to stop.