Was Trump’s “Russia, if you are listening, . . . “ Criminal? Impeachable?

On July 27, 2016, candidate Donald Trump asked Russia to find Hilary Clinton’s deleted emails. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” It is fair to say, I think, that the Russians, if they took him up on this, could expect Trump’s gratitude and whatever might flow therefrom in the future.  Did this constitute a violation of federal election law? If so, was it a criminal violation?  If so, was it an impeachable violation?

Hacking.

We now know the Russians started their hacking campaign against the Clinton campaign that very day. It does not follow, however, that Trump “solicited” that hacking. Trump's state of mind is crucial. The internet is a big place.  Trump might well have thought that the Russians could come upon the emails by dint of diligent, but perfectly legal, search. To request conduct that is legal is not criminal solicitation. Perhaps a cyberworld sophisticate would know there was no chance of finding the missing emails, or anything else potentially very damaging to the Clinton campaign, without committing a cybercrime. But this is Donald Trump we are talking about. So, there is, at least from what is on the tape alone, insufficient evidence to charge solicitation to hack within the traditional legal meaning of "solicit."

Moreover, and utterly fatal to the idea that Trump could be federally prosecuted for soliciting the Russian hacking, is the interesting fact that the general federal solicitation statute, unlike that of many states, is limited to solicitation of violent crimes.  18 USC 373, prohibits only solicitation of crimes involving “physical force.”  

Foreign Contributions to a Federal Campaign.

Now for the, “however.”

Clearly Trump was not requesting the Russians to find the emails and them keep them secret. It would go too far to say he was asking that they be sent to him, but clearly some sort of publication was intended.  It is also clear that he was asking for them for use in his campaign against Clinton. They would be, as what the Russians ultimately published was, a significant benefit to the Trump candidacy. So, Trump was soliciting from a foreign source an in-kind contribution to his presidential campaign.

52 USC 30121(a)(1)(A) prohibits any foreign national (which includes foreign governments) from making directly or indirectly, “a contribution or donation of money or other thing of value.” (Emphasis added.)  It is doubtful that the emails in question would have been the prize that congressional Republicans and the Trump campaign pretended they would surely be. Yet doubtless they could have made some political hay out of at least a handful of the many emails. Did Trump believe they would be of value? You can hear it in his voice. That is precisely why he was hoping the Russians would find them. 

52 USC 30121(a)(2) makes it unlawful for “a person to solicit, . . .  a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.”

Trump violated this provision right before our eyes.

Was it a Crime?

Election contribution violations are usually matters of civil fines meted out by the Federal Election Commission. However, criminal penalties are available for  ”Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure” (Higher dollar amounts are felonies; lower are misdemeanors.) 30109(d)(1)(A).

There is no reason to think that this provision is limited to monetary or easily valued contributions. A significant in-kind contribution will be a candidate for felony treatment.  

A larger question arises because “soliciting” is not expressly included along with “making” and “receiving” in the criminal penalty provision, despite the fact that “soliciting” is separately called out as unlawful. There is, then, an argument that the substantive offenses of foreign giving and receiving of contributions are potentially criminal, but not the inchoate offense of soliciting.

 Yet, a strong case can also be made that soliciting an unlawful contribution is one of those things that “involves the making, receiving or reporting of any contribution.”  Soliciting a contribution is very closely related indeed to the giving and receiving of a contribution. In the overall scheme of the chapter, it is natural to include unlawful soliciting within the criminal provision.  

 A candidate requests a $10 million contribution to a presidential campaign from a foreign government. The FBI intercepts the courier just before the door of the campaign headquarters. The funds are never received. It seems unlikely that the statute would or should be read to absolve the candidate of criminal liability. (Were there an agreement instead of a solicitation respecting the foreign contribution, there would be liability for both donor and donee on these facts pursuant to 18 USC  371.)

A High Crime of Misdemeanor?

Not all predicates for impeachment are crimes and not all crimes are predicates for impeachment within the meaning of the constitutional impeachment clause when ratified. Electoral misconduct does have the right kind of tie to matters governmental to come within the eighteenth century meaning of that clause, however. For whether conduct prior to assumption of office is a constitutionally proper basis for impeachment, see my post of April 5, 2017, “Impeachment for Acts Prior to Taking Office.” http://lawrencecrocker.blogspot.com/2017/04/impeachment-for-acts-prior-to-taking.html