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Influencing an election can look like many things. Of all the things influencing any aspect of the U.S. electoral/political process may look like, things it must never entail, regardless of what it "looks like," is something whereby:
Doubtless is that Russia devoted resources to influence the outcome of the 2016 election; however, unlike 1996, the mode of intervention -- email hacking, issuing fake news -- has focused much criminal investigation on computer security and espionage statutes. The controversy thus lacks the "feel" of a simple case of political spending. Furthermore, the matter has obtained the air of 21st century cyber-crime and foreign intelligence service chicanery, making it a matter of sophisticated international subterfuge rather than one of banal burglary and an associated cover-up as we had with Watergate.
The law prohibits foreign nationals from providing “anything of value … in connection with” an election. The hacking of the Podesta emails, which were then transmitted to Wikileaks for posting, clearly had value, and its connection to the election is clear. None other than Trump said so publicly, egging on the Russians to locate and publish Clinton emails to aid his campaign, famously bidding: "I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30K emails that are missing;" moreover, Trump confidante, Roger Stone, offered similar contemporaneous statements about the value placed on these disclosures.
As for the criminal culpability of campaign personnel, the relevant regulation requires actus reus and mens rea nexused, at least, with "substantial assistance" to the foreign spender who illegally plies a "thing of value." Does a presidential campaign render this substantial assistance to a foreign national engaged in influencing an election by endorsing the specific activity and confirming its strategic utility? Well, when the Federal Election Commission (FEC) promulgated the ban on “substantial assistance,” it made clear that the term was to be broadly construed. It offered the concrete example of a U.S. citizen acting as a "conduit or intermediary" for foreign spending, citing such as but one example.
Russia investigators are, of course, examining whether Trump campaign members aired private assurances or conditional offers to foreign nationals -- including Russians and their agents -- to encourage them or help coordinate dissemination of ideas, information and/or materials. Coordination at this level likely warrant applying Section 110.20 provisions such as those aimed at the campaign’s acceptance or receipt of the Russian assistance, or even its direct solicitation of it, thus establishing a criminal nexus of acts and intents.
So, one might argue that the hacking and dissemination of the Podesta emails were not contributions covered by the federal campaign finance law; however, they were something of value, and the statute and related regulations of the FEC separately prohibit any value given by a foreign national. To probatively make such a case, given the nature and scope of extant FEC laws, one must argue that a presidential candidate can invite, accept and/or exploit, the aid of a foreign intelligence service because it is a particular kind of “value,” yet that Russians distributed information through online bots, the creation of DC Leaks in the United States, or the payment for online advertising did not contribute to the campaign's ends.
So what does election influence look like? Many things; it's not a binary thing; it's not enumerated list of "looks."
- contributions, donations, other expenditures and "things of value" by foreign nationals in any federal, state or local election,
- things in violation of the Bipartisan Campaign Reform Act of 2002, and/or
- some violations of the Logan Act, which bars unauthorized Americans from interacting with a foreigner re: policy.
Doubtless is that Russia devoted resources to influence the outcome of the 2016 election; however, unlike 1996, the mode of intervention -- email hacking, issuing fake news -- has focused much criminal investigation on computer security and espionage statutes. The controversy thus lacks the "feel" of a simple case of political spending. Furthermore, the matter has obtained the air of 21st century cyber-crime and foreign intelligence service chicanery, making it a matter of sophisticated international subterfuge rather than one of banal burglary and an associated cover-up as we had with Watergate.
The law prohibits foreign nationals from providing “anything of value … in connection with” an election. The hacking of the Podesta emails, which were then transmitted to Wikileaks for posting, clearly had value, and its connection to the election is clear. None other than Trump said so publicly, egging on the Russians to locate and publish Clinton emails to aid his campaign, famously bidding: "I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30K emails that are missing;" moreover, Trump confidante, Roger Stone, offered similar contemporaneous statements about the value placed on these disclosures.
As for the criminal culpability of campaign personnel, the relevant regulation requires actus reus and mens rea nexused, at least, with "substantial assistance" to the foreign spender who illegally plies a "thing of value." Does a presidential campaign render this substantial assistance to a foreign national engaged in influencing an election by endorsing the specific activity and confirming its strategic utility? Well, when the Federal Election Commission (FEC) promulgated the ban on “substantial assistance,” it made clear that the term was to be broadly construed. It offered the concrete example of a U.S. citizen acting as a "conduit or intermediary" for foreign spending, citing such as but one example.
Russia investigators are, of course, examining whether Trump campaign members aired private assurances or conditional offers to foreign nationals -- including Russians and their agents -- to encourage them or help coordinate dissemination of ideas, information and/or materials. Coordination at this level likely warrant applying Section 110.20 provisions such as those aimed at the campaign’s acceptance or receipt of the Russian assistance, or even its direct solicitation of it, thus establishing a criminal nexus of acts and intents.
So, one might argue that the hacking and dissemination of the Podesta emails were not contributions covered by the federal campaign finance law; however, they were something of value, and the statute and related regulations of the FEC separately prohibit any value given by a foreign national. To probatively make such a case, given the nature and scope of extant FEC laws, one must argue that a presidential candidate can invite, accept and/or exploit, the aid of a foreign intelligence service because it is a particular kind of “value,” yet that Russians distributed information through online bots, the creation of DC Leaks in the United States, or the payment for online advertising did not contribute to the campaign's ends.
So what does election influence look like? Many things; it's not a binary thing; it's not enumerated list of "looks."
