US Presidency: Mueller subpoenas refocus attention on Russia investigation

Michael D Goldhaber, IBA US Correspondent

When special counsel Robert Mueller issued grand jury subpoenas relating to emails exchanged between Donald Trump Jr, and an intermediary offering information harmful to the Hillary Clinton campaign, it refocused attention on the investigation into President’s aides and Russia.

But Obama White House Counsel Bob Bauer suggests that there was already an election case to be made before it became fashionable. He offers some unsolicited advice to the Trumps on the law of solicitation.

Bauer has long maintained that there is a campaign finance prosecution hiding in plain sight.

He harks back to the bizarre moment, in late July 2016, when candidate Donald Trump turned to the television cameras and beseeched Russia to hack and leak Hillary Clinton's deleted personal emails: 'Russia, if you're listening. I hope you're able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.'

Trump Senior publicly said 'I love Wikileaks' long before Trump Jr released a private email saying 'I love it' in reference to the promise of Russian information.

Indeed, Trump Senior cited Wikileaks damaging to Clinton no fewer than 124 times during the last month of the campaign.

'It was very clear by then that the Russians had been involved in this kind of hacking episode,' says Bauer, 'and he's cheering them along.'

While stressing that all the facts have yet to be duly gathered and tested, Bauer is willing to offer his legal opinion on the facts as currently reported. Under campaign finance regulations, US nationals may not substantially assist a foreign national trying to influence an election.

‘‘You had a clear-cut effort on the part of the Trump campaign to encourage the Russian government or Russian sources [...]’

Bob Bauer
White House Counsel during Obama Administration

'Substantial assistance' is broadly defined as 'active involvement in the solicitation, making, receipt or acceptance of a foreign national contribution or donation with an intent to facilitate successful completion of the transaction'. 

'You had a clear-cut effort on the part of the Trump campaign to encourage the Russian government or Russian sources to assist with the recovery of the deleted Clinton emails,' says Bauer. 'Certainly it amounts, together with everything else over that period of time and subsequently, to significant assistance to the Russian effort...It's undisputed even by Republican supporters of Donald Trump on the Hill that the Russians were intervening in the election. There's no question that those efforts received substantial amplification, substantial support, from the activities of candidate Trump. He's encouraging them to do it.'

Robert Mueller

Robert Mueller

In July, Trump Jr released his email correspondence – moments before The New York Times revealed that he eagerly organised a meeting of the campaign's leadership to discuss with a Russian delegation information that was represented to be 'part of Russia and its government's support for Mr Trump'.

Suddenly, many legal pundits were citing the ban on US nationals 'soliciting' a 'thing of value' from foreign nationals. 'A campaign cannot ask for something that the law prohibits them from receiving,' explains Bauer.

The more novel issue is the legal 'value' of leaking hacked emails. But Bauer again has no hesitation: 'I think without any question that the provision of this kind of information... constitutes a thing of value,' he contends. 'The law doesn't in any way suggest that a thing of value has to be something that is available for purchase... The campaign perceived it to be of extraordinary advantage... [The proof is t]he email reply "I love it" – and the willingness to assemble the senior staff to host a visiting delegation from Moscow to hear what it was.'

And, says Bauer, because Trump Jr 'has assembled the campaign staff, he's brought in the campaign manager... So the campaign as an entity that answers itself to the law has legal exposure here.'

President Trump has defended his son by tweeting: 'Most people would have taken that meeting.'

Bauer is dismissive. 'There's rough and tumble electioneering, and then there's rough and tumble electioneering that takes place outside the law,' he says. 'Where a foreign government has hatched a plan for a systematic intervention in an election, advises a campaign that it's doing so, offers a campaign a direct hand in planning and obtaining the fruits of this activity, I do not think we're talking about standard oppo research.'

In rebuttal to Bauer, Andy Grewal of the University of Iowa College of Law makes short shrift of the Trumps' hypothetical prosecution. Candidate Trump's public appeal to Russian hackers was merely a joke, Grewal says. Any criminal election law case based on the Trump Jr emails would require a difficult showing that the defendant had knowledge of the campaign law. Any election law case, criminal or civil, would require courts to read 'thing of value' with implausible breadth.

'If you say any time somebody gives you useful information, that's a "thing of value," that means any time you call a member of Congress and you mention something useful to him or her, that you have made a campaign contribution,' he reasons. 'It seems kind of odd.'

To Professor Grewal, the whole exercise is still premature. 'The theme of this presidential cycle,' he argues, is that 'the commentary keeps running ahead of the facts'.