The Justice Department sparked fresh debate Wednesday about when seeking foreign assistance in an election becomes a federal crime, with officials deciding President Donald Trump did not cross a legal line in his phone call with Ukrainian President Volodymyr Zelenskiy now at the center of a Democratic push toward impeachment.
The department said its review of the call — in which Trump asked Ukraine to “do us a favor” and talk to his personal attorney Rudy Giuliani and Attorney General William Barr about opening a potential corruption investigation connected to Trump’s main political rival — did not find a “thing of value” that could be quantified as campaign finance law requires.
Opposition research can be a “thing of value” and therefore a potential crime, election law experts said, but the term is not well defined and has not been fully tested in court. Some experts backed the Justice Department view on legal grounds; some didn’t.
Although House Democrats pressing for impeachment are focused on larger issues of Trump’s abuse of power, the question of whether the president violated the law could factor into the debate about his dealings with Ukraine.
“The call readout is damning evidence of criminality and represents Exhibit A that the president abused power by pressuring a foreign government to target an American citizen,” Democratic Caucus Chairman Rep. Hakeem Jeffries of New York said.
Asked what crime he thinks Trump violated, Jeffries said: “That will be part of the process that unfolds over the next few weeks from the relevant committees of jurisdiction leading with the Intel Committee.”
Congress can define what rises to impeachable conduct whether or not it fits the statutory definition of a crime, said Derek Muller, a law professor at Pepperdine University who specializes in election law.
“They probably feel better when it has something much closer to a legal hook,” Muller said. “If the debate is going to turn on something as malleable as ‘thing of value,’ that’s going to be a difficult legal hook.”
Republicans said they failed to see any crime. Republican Whip Steve Scalise of Louisiana said, “It is clear that there was absolutely no quid pro quo, and no laws were broken on the call.”
William Barr’s role
The Justice Department’s decision already showed signs that it would add fuel to Democrats’ claims that Barr — who some accuse of giving legal cover to the president during the rollout of former special counsel Robert S. Mueller III’s investigation — has not remained as independent from the White House as he indicated he would be during his confirmation hearings.
Barr oversaw the DOJ as it considered whether to charge the president for a conversation that mentioned Barr. House Judiciary Chairman Jerrold Nadler said Barr should no longer oversee the department’s legal calls about the matter as long as the House is investigating.
“The President dragged the Attorney General into this mess,” Nadler, a New York Democrat, tweeted. “At a minimum, AG Barr must recuse himself until we get to the bottom of this matter.”
Rep. Bill Pascrell Jr. pointed to his paper copy of the White House transcript, implying that he thought there were parts missing. “This is not a 30-minute telephone conversation,” the New Jersey Democrat said. “This is Mr. Barr at work again.”
And when it comes to the department’s decision on whether Trump committed a crime, Democrats such as Rep. Ted Lieu of California, a member of the Judiciary Committee, don’t express faith in Barr’s independence.
“What is disappointing to me is with Bill Barr as the head of DOJ it appears that he has completely lost all independence and is now simply a mouthpiece for their president,” Lieu said. “It’s very clear that if a foreign government can manufacture dirt on a political opponent that that could be of potentially incalculable high value. So the DOJ’s legal reason is stupid.”
The Justice Department in August was sent the call by the Inspector General for the Intelligence Community, who cited the conversation as a possible campaign finance law violation. The department’s criminal division reviewed the official record of the call and determined there was no campaign finance violation, and the department has concluded the matter, a DOJ spokeswoman said in a statement that coincided with the White House release of a written record or summary of the call.
First Amendment issues
Potential charges against a president raise all sorts of unsettled legal and constitutional questions, such as free speech concerns and whether a sitting president can face criminal charges. The Justice Department did not cite those in its statement on the decision.
Mueller touched on them in his report on Russian interference in the 2016 presidential election, to explain his decision not to charge Donald Trump Jr. or other Trump campaign officials over a meeting at Trump Tower about possible dirt on Hillary Clinton that Russians might have.
In the report, Mueller said that “candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply.” But he discussed “voluntary provision of uncompensated opposition research” and First Amendment concerns, and wrote, “It is uncertain how courts would resolve those issues.”
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, wrote Rick Hasen, a professor of law and political science at the University of California, Irvine.
Hasen told CQ Roll Call on Wednesday that opposition research amounts to a thing of value and soliciting it from a foreign national posed a potential crime. But he noted the campaign finance issues as explained by the Justice Department were secondary to a bigger picture that lawmakers should consider: whether “this is an abuse of power” that merits impeachment.
Paul S. Ryan, vice president for policy and litigation at Common Cause, said the Justice Department made the wrong call in deciding not to prosecute the possible campaign finance violations, saying the balance between the First Amendment and the public interest was a matter for the courts, not prosecutors, to sort out.
“The decision by the Department of Justice is incorrect, and not surprising given that President Trump controls the Department of Justice,” Ryan said.
Common Cause filed a complaint Tuesday with DOJ and the Federal Election Commission, stemming from the phone call.
Common Cause alleged that Trump, his personal attorney Rudy Giuliani and other political operatives illegally solicited a political contribution from a foreign national.
Ryan acknowledged the unprecedented nature of such a case and a lack of relevant case law but said that’s “because we’ve never had a president ask a foreign national for oppo research that we know of.”
He added that even if prosecutors may not be able to indict a sitting president, that wouldn’t apply to Giuliani, whom Trump referenced on the call as a go-between.
“I will ask him to call you along with the Attorney General,” Trump said, according to a description of the call made public by the White House. “Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great.”
However, some Republican campaign finance legal experts said the Justice Department decision was correct.
“DOJ got it right here,” said Charles Spies, a GOP campaign finance lawyer at Dickinson Wright. “The Federal Election Campaign Finance Act was not designed to deal with foreign policy, and that is clearly what the transcript of the president’s conversation is dealing with. Even the most ardent Trump hater would have to go through multiple worst-case assumptions to get to the conversation being something of value in the campaign finance arena, and assumptions aren’t enough in the free speech arena.”
Patrick Burgwinkle, a spokesman for the campaign overhaul group End Citizens United, said there are “many examples of the president’s corrupt, impeachable behavior in the transcript, but it is illegal to ask for or accept anything of value from a foreign national to influence an American election.”
“I’ll leave the legalese to the lawyers, but any reasonable person who has read the transcript knows that’s exactly what President Trump did,” Burgwinkle said.
Lindsey McPherson and Doug Sword contributed to this report.