President Donald Trump may still face criminal responsibility for his campaign’s dealings with Russia. Although Mueller found no conspiracy crimes, we don’t know what he observed on campaign finance violations and won’t know until his report is released. Mueller may anticipate further prosecution of the Trump campaign, or even the president, for campaign finance crimes related to Russia contacts, despite what Attorney General Barr has disclosed to Congress so far about Mueller’s report.
Last week, the New York Times reported Special Counsel investigators believe Barr failed to adequately portray findings that were more troubling for Trump. We also know now, from Barr himself, Mueller’s report is nearly 400 pages — not counting exhibits. Does any of it discuss campaign finance violations?
In Barr’s March 24 letter, he indicates Mueller wrote, “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” This direct quote from Mueller is the only one Barr provided regarding crimes arising from contacts with Russia, and it is a partial sentence, so it lacks context. Mueller focused there on the Trump campaign not conspiring with Russians in its “election interference activities.” He did not suggest — as far as we know from what Barr has written about the report — that there were no other crimes by the Trump campaign arising from dealings with Russia, such as campaign finance crimes.
In fact, the pattern Mueller followed was to farm out campaign finance violations for prosecution to other parts of Justice. For instance, it’s the Southern District of New York (SDNY), not Special Counsel, which obtained an indictment of Michael Cohen for violating campaign finance laws relating to the Stormy Daniels payments. The indictment states Michael Cohen was directed by Individual-1, widely believed to be President Trump. Though Mueller referred this to SDNY, it’s hard to believe he would not have addressed actions of Individual-1 in furthering campaign finance crimes in the nearly 400 pages of his report. Similarly, the prosecution and immunity deal for campaign finance violations by National Enquirer was handled by SDNY. Again, this must be referenced somewhere in Mueller’s report.
Could Mueller have identified violations of campaign finance laws by the Trump campaign because of its Russia contacts, analyzed them, but not given conclusions? It’s a significant matter for Barr to have left out, but nothing in Barr’s summary, which Barr confirmed focused only on Mueller’s “principle conclusions,” forecloses that possibility. It would mean the Special Counsel has not cleared the Trump campaign of all criminal liability for their contacts with Russian officials because campaign finance violations are prosecutable, as crimes.
Federal campaign finance law and Federal Election Commission (FEC) regulations prohibit foreign nationals, directly or indirectly, from making contributions or donations of anything of value to US elections. Also prohibited is solicitation of such illegal contributions, and accepting or receiving such illegal contributions, by U.S. citizens either running for office or associated with campaigns. A contribution is defined as anything of value made by any person in an effort to influence a U.S. election. Campaign finance violations can be criminal or civil in nature, with more severe criminal penalties implicated when an individual acted knowing and willfully. This includes aiding and abetting a campaign finance crime.
The most likely focus is Roger Stone, Trump’s bombastic former campaign associate who is already indicted for false statements and witness tampering. Stone’s indictment included an allegation that a senior Trump campaign official asked Stone to inquire about future releases of hacked emails by WikiLeaks. Damaging information about an opponent, known as opposition research, has been recognized by the FEC as a thing of value that constitutes a contribution. Thus, Stone, acting at direction of a campaign, may have knowing and willingly solicited something of value from a foreign national, a clear violation of campaign finance laws. Mueller didn’t indict Stone on campaign finance violations, but as previously discussed, Mueller farmed out other campaign finance investigations to SDNY, which could prosecute Stone — or any Trump campaign officials who may have directed him — for campaign finance violations.
Trumps’ campaign Chairman, Paul Manafort, and Deputy Campaign Chairman, Rick Gates, could also still be the subject of campaign finance violations for providing non-public polling data. It’s one of the most peculiar aspects of contacts with Russia that this was shared with Constantin Kilimnik, a Russian known for extensive links to Russian intelligence. Few reasons explain why a Russian national would be interested in polling data other than to act upon it and fewer still explain why Manafort or Gates would give it to him. More facts are required to implicate Manafort, Gates or the campaign for campaign finance violations, but Mueller may have uncovered such facts, particularly because Gates, a cooperating witness, is still cooperating, according to the Special Counsel’s office, which recently requested another delay in his sentencing.
Donald Trump Jr. also may not be off the hook because the now infamous Trump Tower meeting suggests he, too, may have solicited opposition research on Clinton from Russians. If his father knew about it, or Stone’s communications, he could be implicated as well.
In sum, Trump and his campaign are not out of the woods for prosecution of campaign finance violations arising from contacts with Russia. We cannot know what the Special Counsel concluded about campaign finance violations until we see his report, but it’s possible he foresaw prosecution and even made referrals, prior to completing his report.
David Tafuri is an international lawyer who served as the U.S. Department of State’s Rule of Law Coordinator for Iraq at the U.S. Embassy in Baghdad during the height of the war in Iraq. He was an outside foreign policy advisor to President Obama’s 2008 campaign. He had previously worked for the United Nations in Turkey and served as an aide to the Senate Judiciary Committee. He is the founder and current President of the U.S.-Kurdistan Business Council. He appears frequently on CNN, FOX News, BBC and other networks. Follow him on Twitter @DavidTafuri.