Junior got off easy

Federal law makes it a potential crime for any person to “solicit” (that is, expressly or impliedly ask for) the contribution of “anything of value” from a foreign citizen. The offer of such opposition research qualifies as something of value for these purposes, a point the special counsel acknowledged based on prior cases and Federal Election Commission rulings.

We now know the special counsel considered whether Trump Jr. and Manafort committed such a crime before ultimately declining to prosecute. We also now know that Mueller made some key errors during that decision-making process.

To begin with, the special counsel’s report says that Trump Jr. “declined to be voluntarily interviewed” about the meeting. The special counsel should have called Trump Jr. before the grand jury, as he did with other witnesses. It seems likely that he declined to do so as not to incur the wrath of the president.

Trump Jr.’s grand jury testimony would have been especially important given one of the key reasons Mueller declined to prosecute the president’s son for this crime: lack of willfulness. In order for a campaign finance violation to constitute a criminal offense (rather than a civil problem handled with fines by the Federal Election Commission), one must act willfully. Willfulness is a question of mental state. Getting Trump Jr. before a grand jury would have been a great way to get at his mental state, because he would have been testifying under the risk of perjury. This was a huge missed opportunity for Mueller.

Mueller made some other questionable choices. While Trump Jr. could have been charged with illegally coordinating with the Russians to make an illegal foreign expenditure, Mueller describes the law defining coordination as too uncertain. In fact, as Common Cause’s Paul S. Ryan explains in this thread, there is both a federal statute and case law defining the term, and Trump Jr.’s conduct seems to fall within it.

Mueller also made the ridiculous argument that it is possible Russian “dirt” on Clinton could have been worth less than $25,000, the threshold to punish Trump Jr.’s cooperation as a felony. Really?

Further, Mueller said that a Trump Jr. prosecution would have raised “First Amendment questions” and “could have implications beyond the foreign-source ban.” To begin with, a First Amendment defense of Trump Jr. is bogus. As I explained in Slate, the main First Amendment argument is that a ban on soliciting foreign political contributions is overly broad and could apply any time a foreign individual gives any information to a political campaign.


But Trump Jr. was a major campaign official meeting with representatives from a foreign government that were offering “dirt” on the campaign’s opponent. As I wrote, “To let someone off the hook who solicited ‘very high level and sensitive information’ from a hostile government because there may be cases in which information from a foreign source does not raise the same danger to our national security and right of self-government is to turn the First Amendment into a tool to kill American democracy.”

Further, even if Mueller believed there were First Amendment questions in play, he should have left that for the courts to decide given the strong national security interests at stake here. Mueller offered no First Amendment argument in his report. He merely flagged the issue and never provided any analysis to back up the First Amendment claim.

I’m afraid that this flagging of the issue does more harm than good. Mueller has now given campaigns credible reason to believe they can accept help from foreign governments because they may have a constitutional right to do so. That’s even more troubling for what it says about 2020 than what it says about 2016.