Dangers to the First Amendment if foreign campaign dirt is criminal

The “get Trump at any cost” legal posse has come up with a theory that puts not only the First Amendment at risk, but also the rights of voters to receive information about presidential and other political candidates. According to this theory, the federal election campaign statutes would make it a crime for any candidate to receive information from a foreign source about his or her opponent. The principle statute at issue reads as follows: “It shall be unlawful for (1) a foreign national, directly or indirectly, to make: (A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”

The language and legislative history of the statute suggest that it was intended to prohibit the solicitation and receipt of cash or other material items of value. Although its words are open to a broad interpretation that would include information of value, to interpret the statute in that way would put it in direct conflict with the First Amendment, which at its core, protects information that political candidates can use to inform the American public about their opponents. If the statute were interpreted to apply to obtaining negative information about an opponent, the following hypotheticals would become reality. Remember these are purely hypotheticals, not based on any facts, intended to make an argument.

{mosads}A Canadian reporter based in Washington provides information to the Hillary Clinton campaign proving that Donald Trump bribed Canadian officials to secure permits to build a hotel in Montreal. An Israeli green card holder attending an American university discovers that Clinton, while a student at Wellesley College, had joined the Communist Party. Bernie Sanders is given information by a French socialist proving that Clinton and Trump colluded to defeat his primary bid. A Russian lawyer gives evidence that Clinton deliberately destroyed her emails to cover up crimes. A British spy provides information that Trump engaged in improper sexual behavior while in Moscow. An Australian journalist provides a recording of James Comey telling a friend that he purposely reopened the Clinton email probe to defeat her bid for president.

All of these hypotheticals, most of which bear no reality but some of which may come close, would be covered by an interpretation of the statute that brought information within the words “a contribution of money or other thing of value.” In each of these hypotheticals, the information is provided by a foreign national. In each of these hypotheticals, the information is at the core of the First Amendment.

Yet, serious academics and other commentators who have joined the “get Trump at any cost” legal posse have argued on national television that the statute prohibits the kind of information that Russians may have wanted to offer the Trump campaign at the Trump Tower meeting. They argue that even if the information was obtained by the Russians lawfully and was not part of a larger “collusion” scheme, the mere gathering of any information from a foreigner, friend or foe, is a criminal violation of campaign laws.

Defenders of the unconstitutionally broad interpretation of this statute might argue that all of the information contained in the above hypotheticals could be given directly to the media, which would then publish it. That may well be true, but if the information was first given to a political candidate or campaign, it could not be transmitted by that candidate or campaign to the media. To do so would be to circumvent the statute by laundering the information through the media. Moreover, under the First Amendment, a candidate would have the right to use or withhold all or part of this information as it best served his or her campaign, rather than giving it to the media. Even if the media published the information, the First Amendment rights of candidates would be violated.

If the shoe were on the other foot, if President Hillary Clinton were being investigated for violation of campaign finance laws for seeking to obtain negative information about Donald Trump, the American Civil Liberties Union would be up in arms about this obvious violation of the most fundamental principles protecting the freedom of expression of candidates. But since the election of Trump, the ACLU and many other lifelong civil libertarians have failed the “shoe on the other foot” test. They have applied one standard to Clinton and a quite different one to Trump.

This double standard hypocrisy reflects a broader problem. Throughout the world, civil liberties have been weaponized by both the right and the left in support of their ideological agendas. The standard is “free speech for me but not for thee” instead of free speech and civil liberties for all including opponents. Under any neutral approach to constitutional principles, our campaign laws must not be broadened to deny candidates the right to receive negative information about their opponents.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.