Can it be a crime to do opposition research by asking foreigners for information?

Donald Trump Jr. is interviewed by Sean Hannity on his Fox News television program on Tuesday. (Richard Drew/Associated Press)

Say that, in Summer 2016, a top Hillary Clinton staffer gets a message: “A Miss Universe contestant — Miss Slovakia — says that Donald Trump had sexually harassed her. Would you like to get her story?” The staffer says, “I’d love to,” and indeed gets the information, which he then uses in the campaign.

Did the staffer and the Miss Universe contestant just commit a crime? Yes, under the analysis set forth in the past couple of days by some analysts, such as my University of California colleague and leading election law scholar Rick Hasen (UC Irvine School of Law) and by Common Cause; Hasen was cited by the Wall Street Journal and CNN; similar arguments were quoted by Dahlia Lithwick (Slate).

Foreigners who aren’t U.S. citizens or U.S. permanent residents, the argument goes, are barred from providing candidates any “thing of value” in connection with any American election campaign. Campaign staff are barred from soliciting any “thing of value” from such foreigners. And, the argument goes, valuable political information about an opponent’s misdeeds is a “thing of value.” (Hasen notes that the Federal Election Commission has treated some information, such as contact lists, campaign materials, and polling information as a “thing of value.”)

What’s more, this would apply not just to foreigners who live abroad. If a Slovakian college student who is studying in the United States called the Clinton campaign with such information, that would be a crime. If the Clinton campaign heard that Mar-a-Lago was employing illegal immigrants in Florida and staffers went down to interview the workers, that would be a crime.

And it would make opposition research on much possible foreign misconduct virtually impossible. Say that Clinton’s campaign heard rumors that the construction of a Trump resort in Turkey might have involved some shenanigans. It’s likely impossible to effectively follow up on that without soliciting some valuable information from foreign nationals, such as foreign government officials who were (hypothetically and allegedly) bribed, or rivals who may have a motive to provide information (recognizing, of course, that any such information may be untrustworthy unless it’s otherwise corroborated). Or say that Bernie Sanders’s campaign heard rumors of some misconduct by Clinton on her trips abroad — it wouldn’t be allowed to ask any foreigners about that.

Now one possible response would be that the provision of such information would be “volunteer services,” which is generally allowed even for people who can’t contribute “thing[s] of value.” But as I understand Hasen’s argument, the information here wouldn’t qualify as a voluntarily provided service; see, for instance, this post, which cites an FEC opinion about polling data and which takes the view that providing “poll result information to [the candidate] or anyone else working for [the] campaign” would not be covered by the volunteer exemption. And beyond that, the volunteer exception applies only if the person is “not compensated by anyone else.” The employee of a foreign company that wants to alert the Clinton campaign to supposed misconduct by Trump overseas, and who communicates with the campaign on the company’s behalf, would certainly not be a volunteer (though, again, it seems to me that Hasen’s position is that providing valuable political information about an opponent wouldn’t be covered by the exception even apart from whether the provider is on someone’s payroll).

Yet that, it seems to me, can’t be right. It would raise obvious First Amendment problems: First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights. See Bridges v. Wixon, 326 U.S. 135 (1945) (“freedom of speech and of press is accorded aliens residing in this country”); Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) (“We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders,” including ones who are not permanent residents).

Second, Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?

The Supreme Court did affirm (without opinion) a federal court decision in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), that upheld a ban on contributions and independent expenditures by non-citizen non-permanent-residents, on the theory that the government can use such a ban to limit foreign influence on American elections. But the panel decision expressly stressed that it was limited to the restriction on spending money. And it seems to me that restrictions on providing information to the campaigns — or on campaigns seeking such information — can’t be constitutional. Can it really be that the Clinton campaign could be legally required to just ignore credible allegations of misconduct by Trump, just because those allegations were levied by foreigners?

Now this whole controversy is of course arising as to Donald Trump Jr.’s willingness to get unspecified information that came from the Russian government, and was “part of Russia and its government’s support for Mr. Trump.” Maybe it should and could be made illegal for a campaign to solicit or accept information that directly or indirectly came from a foreign government — though even that’s not clear to me: If a Canadian government official had informed the Clinton campaign of some possibly illegal conduct in the development of one of Trump’s Canadian properties, I don’t think it could be made a crime for the Clinton campaign to accept that information and ask for more. (It certainly is illegal to deliberately conspire with anyone, foreign or domestic, to hack into someone’s computer; but so far I haven’t heard evidence that Donald Trump Jr. was doing that.)

But in any event, that’s not what the rules that people are discussing say. Rather, those rules ban contributions of “things of value” by all foreign citizens (except those who are also U.S. citizens or permanent residents), and the argument is that politically useful information about a candidate’s opponent is in general a thing of value. If that is the right way to construe the statute banning foreign contributions, then the statute does cover all the examples that I gave, and is therefore “substantially overbroad” and thus facially unconstitutional (at least as to such information), regardless of whether a narrower statute could ban the particular kind of speech involved here. But if we avoid the overbreadth by construing “things of value” as not including information (or as not including one-off information that isn’t in the form of a standard commercially distributed product, such as poll results or prospective contributor lists), then Donald Trump Jr.’s expression of willingness to accept such information from foreigners (including ones linked to foreign governments) wouldn’t be covered by the statute.

That, at least, is my tentative thinking on the matter. (I should note that, while I know a good deal about First Amendment law generally, I am less knowledgeable about the regulatory details of federal campaign statutes.) I’ll be happy to revise my thinking as I hear more arguments, or as more facts emerge.

For a similar argument (which I just saw as I was finishing the post), see this post by Frank Bowman (Impeachable Offenses?). Thanks to Jeffrey Redfern for first pointing me to Rick Hasen’s posts.

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