In 2016, the Russian government directed a comprehensive effort to interfere in the United States’ presidential election, seeking to elect Donald Trump and defeat Hillary Clinton.[1] Russia continued its efforts during the 2018 midterm elections and is expected to do the same in 2020.[2] Other countries have also shown an inclination to meddle in US domestic affairs.[3] The founders recognized that foreign interference is anathema to a functioning democracy.[4] Congress agreed when it passed and amended the foreign-source ban, which prohibits political contributions and expenditures by foreign nationals.[5] Disturbingly, President Trump has not only refused to reject foreign help,[6] but has affirmatively sought foreign assistance.[7] However, because the foreign-source ban cannot be criminally enforced when the “thing of value” provided to, or solicited by, the campaign cannot be translated into a monetary amount,[8] problematic cases of foreign influence fall outside the scope of current campaign finance law. Congress can resolve this problem by passing a modified version of H.R. 3395, the “Prohibiting Foreign Election Assistance Act of 2019.”[9]
I. THE FOREIGN-SOURCE BAN
A. Legislative History and Current Law
The foreign-source ban has its origins in the Foreign Agents Registration Act Amendments of 1966 (“FARA”).[10] In its original form, the law prohibited a “foreign principal” from making campaign contributions, and also prohibited campaigns from soliciting or receiving such contributions.[11] However, the 1966 law was easily evaded by foreign nationals contributing through lawfully-owned businesses.[12] In 1974, following the Watergate scandal, Congress passed extensive amendments to the Federal Election Campaign Act of 1971 (“FECA”).[13] Congress enacted reporting requirements, contribution and expenditure limits, and set up the Federal Election Commission (“FEC”).[14] Among these new restrictions was an amendment to the foreign-source ban, extending its reach to all “foreign national[s]” and defining the term as “a foreign principal as defined in FARA” or “an individual who is not a citizen or permanent resident of the United States.”[15] Finally, in response to efforts by the Chinese government to interfere with the 1996 elections, Congress adopted the Bipartisan Campaign Reform Act of 2002, which banned foreign nationals from making expenditures and contributions to political parties.[16]
The relevant statute, 18 U.S.C. § 30121(a), now provides the following:
“(a) 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;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.”[17]
B. “Thing of Value”
While DOJ does bring § 30121(a) cases on occasion,[18] most enforcement of the foreign-source ban—and FECA more generally—is handled by the FEC. In fact, the FEC has issued regulations defining the term “thing of value”:
“[T]he term anything of value includes all in-kind contributions. Unless specifically exempted under 11 CFR part 100, subpart C, the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services is a contribution.”[19]
The FEC has repeatedly interpreted the foreign-source ban in recent years. In 2004, the FEC determined that a contact list of conservative activists provided by a corporation to the Bush-Cheney campaign constituted a “thing of value.”[20] In 2007, the FEC held that the acceptance of Canadian-sourced “flyers, advertisements, door hangers, tri-folds, signs, and other printed material” would violate § 30121(a), regardless of the fact that “the value of the[] materials may be nominal or difficult to ascertain.”[21] In 2012, the FEC implied that opposition research can constitute an in-kind contribution under FECA.[22] Finally, in 2019, FEC Chairwoman Ellen Weintraub issued a memorandum summarizing FEC decisions interpreting the phrase “thing of value.”[23] The memorandum concluded that “[t]he Commission has held a long and diverse list of goods and services (both tangible and intangible, both easy and difficult to value) to qualify as contributions.”[24] Examples listed in the memorandum included “opposition research,” “poll results,” and “an email list.”[25]
In federal criminal law, the phrases “thing of value” and “anything of value” are found in a litany of public corruption statutes.[26] These phrases are broadly interpreted, covering anything to which the defendant attaches subjective value.[27] The “thing of value” need not be tangible, nor must it be capable of being translated into monetary terms.[28] Sexual favors,[29] promises of future employment,[30] and commitments not to run in an election[31] all fall within the scope of the phrase. Numerous circuits have held that the provision of information can constitute a “thing of value.”[32] For example, in United States v. Sheker,[33] the Ninth Circuit held that information regarding the whereabouts of a government witness constituted a thing of value.[34] As the court explained, “[i]n normal English usage commercial worth is not the exclusive measure of value. . . . Information obtained for political advantage might have value apart from its worth in dollars.”[35] Similarly, the Mueller Report argued that “[a] foreign entity that engaged in [opposition] research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.”[36]
Because the Supreme Court has rejected broad interpretations of many public corruption statutes,[37] critics may argue that the Court would also do so here. However, the reasoning applied by the Court in United States v. McDonnell[38] —its most notable case to that effect—leads to a different result with respect to the foreign-source ban. In McDonnell, the Court applied the noscitur a sociis canon of construction to the definition of “official act” in the federal bribery statute.[39] The statute defined “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy . . .”[40] The Court held that the statute’s subsequent terms, “cause, suit, proceeding or controversy,” restricted the meaning of its preceding terms, “question” and “matter.”[41] Thus, to take a “decision or action” on a “question” or “matter,” the official must engage in an act that involves a formal exercise of government power.[42] Unlike the bribery statute, however, the foreign-source ban does not contain an exhaustive list of similar terms, but rather two disjunctive options, one specific (“money”), the other general (“thing of value”).[43] As the Court explained in Ali v. Federal Bureau of Prisons,[44] “[t]he absence of a list of specific items undercuts the inference . . . that Congress remained focused on the common attribute when it used the catchall phrase.”[45] Accordingly, the proper interpretation of § 30121(a)(1)(A) is that “thing of value” is an intentionally broad catchall phrase encompassing a wide variety of tangible and intangible in-kind contributions.
Nor would this interpretation of the foreign-source ban would be “substantially overbroad,” criminalizing a wide variety of protected speech, in violation of the First Amendment.[46] First, journalists acting in their professional capacity generally fall outside FECA’s prohibitions,[47] so the solicitation of information from a foreign source would not qualify as a prohibited expenditure. Likewise, the provision of information from a foreign journalist to an American campaign is not a prohibited contribution. Moreover, campaigns can still air dirty laundry about their opponents by directing a foreign source to the media.[48] Second, a campaign may pay market value for foreign-sourced information.[49] Under FEC regulations, FECA only prohibits in-kind contributions when provided for less than their “usual and normal charge.”[50] At market value, the information constitutes an authorized expenditure by the campaign.[51] Third, the volunteer services exception protects foreigners who provide information to a campaign, so long as they are not compensated for doing so.[52] The same exception allows campaigns to gather information about an opponent’s activities in a foreign country so long as the campaign’s sources have gathered their information outside the scope of their employment. However, when the foreign national is a member of a foreign government, they may be on payroll, and the volunteer services exception may not apply.[53] Nonetheless, because the interest in deterring foreign interference is heightened when the contributor is a member of a foreign government, interpreting “thing of value” to include information provided, solicited, or accepted for a political benefit is permissible.[54] A recent case, Bluman v. F.E.C.,[55] indicates as much.
In Bluman, the plaintiffs—foreign nationals present in the U.S. on work visas—sought to make contributions to federal candidates and political committees and asserted that the foreign-source ban was unconstitutional under the First Amendment.[56] A three-judge panel rejected this contention, explaining that “the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”[57] The Bluman court held “that the government may bar foreign citizens (at least those who are not lawful permanent residents of the United States) from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections.”[58] While Bluman focused solely on the contribution of money,[59] the court’s rationale—protecting “our national political community” from “foreign influence”[60]—is equally applicable to contributions of information.[61] Because foreign nationals have no constitutional right to make such contributions, it is unlikely that campaigns have a right to receive them.
C. FECA’s Enforcement Provision
FECA’s criminal enforcement mechanism is found in 52 U.S.C. § 30109(d).[62] The DOJ only has criminal authority over FECA violations committed “knowingly and willfully.”[63] This standard requires that a defendant have “general knowledge that his conduct is unlawful.”[64] Moreover, prosecutors must generally show that the value of the contribution exceeded a specified, monetary amount.[65] Generally, offenses valued in excess of $25,000 are felonies punishable by up to five years in prison, while offenses valued less than $25,000 but more than $1,000 are misdemeanors punishable by up to one year in prison.[66] While some of FECA’s prohibitions—such as corporate contributions[67] and conduit contributions[68]—have reduced monetary thresholds,[69] one prohibition—fraudulent misrepresentation of campaign authority[70]—has no monetary restrictions at all.[71] Violations of the foreign-source ban, however, are presently subject to the general monetary restriction of § 30109(d)(1)(A).[72]
II. APPLICATION TO FOREIGN ELECTION INTERFERENCE
Two especially problematic cases of foreign influence—the Trump Tower meeting and the Trump-Ukraine scandal—illustrate why the foreign-source ban, in its present form, is unable to effectively punish and deter foreign interference.
A. The Trump Tower Meeting
Emin Agalarov is a Russian pop singer.[73] His father Aras “is a real-estate developer with ties to Putin and other members of the Russian government, including Russia’s Prosecutor General, Yuri Chaika.”[74] Aras Agalarov and Trump had previously worked together on the 2013 Miss Universe pageant—hosted in Moscow—and on the now-defunct Trump Tower Moscow project.[75] Through Rob Goldstone, Emin’s publicist, the Agalarovs reached out to Donald Trump Jr. and “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia.”[76] Goldstone relayed that the information was “part of Russia and its government’s support for Mr. Trump.” Trump Jr. responded to Goldstone minutes later, writing: “if it’s what you say I love it.”[77]
On June 9, 2016, Paul Manafort, Jared Kushner, and Trump Jr. met with Goldstone, Russian lawyer Natalia Veselnitskaya, “Soviet-born U.S. lobbyist” Rinat Akhmetshin, and Russian-born translator Anatoli Samochornov.[78] According to the Mueller Report, Manafort and Kushner were aware that the meeting’s purpose was to receive Russian-sourced dirt on Clinton.[79] At the meeting, Veselnitskaya alleged that the Clinton Campaign had received donations from illegally-derived funds but provided no evidence.[80] Believing that the meeting was a “waste of time,” Kushner left early.[81] For the remainder of the meeting, Veselnitskaya criticized the Magnitsky Act and resultant U.S. sanctions against Russia. Trump Jr. responded that “there was nothing [the campaign] could do at that time.”[82]
The Mueller Report declined prosecution of Trump Jr. for two reasons: (1) the facts available to the Special Counsel’s Office (“SCO”) did not support the conclusion that the “knowing and willful” requirement of § 30109(d) could be proven beyond a reasonable doubt,[83] and (2) the SCO “would also encounter difficulty proving beyond a reasonable doubt that the value of the promised documents and information exceeds the $2,000 threshold for a criminal violation, as well as the $25,000 threshold for felony punishment.”[84] Thus, even if willfulness could be established, the monetary limitations in FECA’s enforcement provision would still preclude prosecution because the government could not translate the promised information into a dollar amount.[85]
B. The Trump-Ukraine Scandal
Following a weeks-long smear campaign led by Rudy Giuliani, President Trump’s personal attorney, Trump ousted Ambassador Maria Yovanovitch, a respected, career foreign service officer, from her position as U.S. Ambassador to Ukraine.[86] Trump then established an unofficial channel of foreign policy through which Giuliani, Ambassador Gordon Sondland, Ambassador Kurt Volker, and Energy Secretary Rick Perry would pressure the President of Ukraine, Volodymyr Zelenskyy, to announce politically-motivated and factually meritless investigations that would benefit Trump’s reelection effort.[87] Soon thereafter, Trump ordered the Office of Management and Budget (“OMB”) to freeze over $391 million in security assistance that Congress had appropriated to enable Ukraine to fight an ongoing war with Russia.[88] Sondland testified that this security assistance was conditioned on the investigations.[89] Next, Giuliani, Sondland, and Volker conveyed to Zelenskyy that a White House meeting sought by Zelenskyy was conditioned upon Zelenskyy announcing the investigations.[90]
On July 25, 2019, Trump spoke over the phone with Zelenskyy. When Zelenskyy brought up the issue of security assistance, Trump responded: “I would like you to do us a favor, though,” and requested that Zelenskyy investigate a debunked conspiracy theory that Ukraine—not Russia—meddled in the 2016 election, and into meritless allegations that Joe Biden worked to get a corrupt Ukrainian prosecutor fired because the prosecutor was investigating Biden’s son.[91] During the call, Zelenskyy agreed to “look into the situation.”[92] Following the call, Sondland, Volker, and Giuliani continued to pressure the Ukrainians into announcing the investigations.[93] The Ukrainians feebly resisted these advances and inquired about the security assistance hold—which became public in late August.[94]
By early September, Zelenskyy—whom Trump wanted “in a ‘public box’”[95]—had scheduled an interview on CNN, in which Zelenskyy planned to announce the two investigations.[96] This interview never happened.[97] Within days, Trump’s scheme began to publicly unravel.[98] A congressional investigation ensued.[99] On December 18, 2019, President Trump was impeached by the U.S. House of Representatives for abuse of power and obstruction of justice.[100] And after the first-ever impeachment trial without witnesses,[101] President Trump was acquitted by the Senate.[102]
Public reports indicate that federal prosecutors in the Southern District of New York are investigating the role of Giuliani and his associates in the Trump-Ukraine scandal.[103] However, it is unlikely that prosecutors will charge Giuliani or his associates with conspiring to violate FECA’s foreign-source ban.[104] Regarding the Trump Tower meeting, the Mueller Report explained that “[t]he type of evidence commonly used to establish the value of non-monetary contributions—such as pricing the contribution on a commercial market or determining the upstream acquisition cost or the cost of distribution—would likely be unavailable or ineffective in this factual setting.”[105] The same is true here. The announcement of the investigations was undoubtedly valuable to Trump’s reelection campaign, evidenced by the comprehensive effort to coerce the Ukrainians to make the announcement[106]—which, under the previously-articulated “thing of value” standard, would constitute a coordinated expenditure, and thus, a contribution for FECA purposes.[107] Nevertheless, because the monetary worth of the announcement is indeterminable, Trump and his coconspirators will evade criminal liability.
III. AMENDING FECA TO PUNISH AND DETER FOREIGN ELECTION INTERFERENCE
On June 20, 2019, U.S. Representative Adam Schiff introduced H.R. 3395, the “Prohibiting Foreign Election Assistance Act of 2019.”[108] The purpose of the bill is“[t]o amend the Federal Election Campaign Act of 1971 to clarify the treatment of information sought or obtained for political advantage from foreign nationals.”[109] The bill proposes four changes to FECA.[110] First, the foreign-source ban’s language “money or other thing of value” would be changed to “money or other thing of value (including information sought or obtained for political advantage).”[111] Second, the bill would require political committees to certify their awareness of the foreign-source ban and its enforcement provision.[112] These certifications would make it easier for prosecutors to argue that a violation of the foreign-source ban met the willfulness standard that § 30109(d) requires.[113] Third, the amendment recognizes that the threat of foreign interference requires an enhanced penalties for information-related violations, and the bill adjusts the statutory maximum to five years.[114] Finally, the bill removes the monetary restrictions for offenses involving of information “sought or obtained for political advantage.”[115]
Because unsolicited, information-related foreign election interference will, in nearly all cases, occur at the direction of a foreign government, and because solicited, information-related foreign election interference will, in nearly all cases, involve the solicitation of those acting on behalf of a foreign government, the scope of the bill’s amendment to § 30109(d) can be narrowed without losing its effectiveness. A revised version should prohibit “the making, solicitation, acceptance, or receipt of any contribution, donation, or expenditure involving information sought or obtained from an officer, employee, or agent of a foreign government, for a political advantage.” Although Bluman indicates that foreign nationals have few, if any, rights with respect to the U.S. electoral process, and despite the court’s exhortation that the government interest in protecting the electoral process from foreign influence is particularly strong,[116] given the widespread debate on the issue,[117] an enacted H.R. 3395 is likely to face a First Amendment challenge. To avoid overbreadth issues,[118] ensuring that any such amendment to FECA is both narrowly tailored and effective at vindicating that interest is paramount.[119] H.R. 3395, as modified herein, achieves that goal.
[1] See generally Robert S. Mueller, III, U.S. Dep’t of Just., 1 Report on the Investigation into Russian Interference in the 2016 Presidential Election (2019) [hereinafter Mueller Report, Vol. 1]; Karen Yourish, et al., The Plot to Subvert an Election: A Timeline Showing the Full Scale of Russia’s Unprecedented Interference in the 2016 Election, and Its Aftermath, N.Y. Times (Sept. 20, 2018), https://www.nytimes.com/interactive/2018/09/20/us/politics/russia-trump-election-timeline.html (illustrating Russian hacking efforts, social media disinformation campaigns, and contacts with the Trump campaign).
[2] See, e.g., Maggie Miller, Russian disinformation efforts targeting 2020 elections began last year: study, THE HILL (Mar. 5, 2020 9:23 AM), https://thehill.com/policy/cybersecurity/486072-report-finds-that-russian-disinformation-efforts-targeting-2020; Alex Marquardt, et. al, Russia sought to interfere with US election systems in 2018 midterms, US official says, CNN: POLITICS (Mar. 13, 2019 8:35 PM), https://www.cnn.com/2019/03/13/politics/russia-election-systems/index.html; Press Release, U.S. Dep’t of Just., Russian National Charged with Interfering in U.S. Political System (Oct. 19, 2018), https://www.justice.gov/opa/pr/russian-national-charged-interfering-us-political-system.
[3] See Jessica Brandt, Depoliticizing Foreign Interference, LAWFARE: FOREIGN POLICY ESSAY (Nov. 3, 2019, 10:00 AM), https://www.lawfareblog.com/depoliticizing-foreign-interference; David E. Sanger, Dueling Narratives Emerge From Muddied Account of Russia’s 2020 Interference, N.Y. TIMES (Feb. 23, 2020), https://www.nytimes.com/2020/02/23/us/politics/russia-2020-election-interference.html; Shane Harris, et. al, Bernie Sanders Briefed by U.S. Officials that Russia is Trying to Help His Presidential Campaign, WASH. POST (Feb. 21, 2020, 4:16 PM), https://www.washingtonpost.com/national-security/bernie-sanders-briefed-by-us-officials-that-russia-is-trying-to-help-his-presidential-campaign/2020/02/21/5ad396a6-54bd-11ea-929a-64efa7482a77_story.html; Kathy Gilsinan, The Russian Trolls’ Next Favorite Candidate, ATLANTIC: POLITICS (Feb. 20, 2020), https://www.theatlantic.com/politics/archive/2020/02/russia-trump-bernie-sanders-election-interference/606703/.
[4] THE FEDERALIST NO. 22 (Alexander Hamilton) (stating that “[o]ne of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”).
[5] See 52 U.S.C. § 30101(a) (2018); Anthony J. Gaughan, The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform, 77 OHIO ST. L.J. 791, 796–802 (2016).
[6] Lucien Bruggeman, ‘I Think I’d Take It’: In Exclusive Interview, Trump Says He Would Listen if Foreigners Offered Dirt on Opponents, ABC NEWS (June 13, 2019, 6:58 AM), https://abcnews.go.com/Politics/id-exclusive-interview-trump-listen-foreigners-offered-dirt/story?id=63669304.
[7] See H. PERMANENT SELECT COMM. ON INTELLIGENCE, 116th CONG., THE TRUMP-UKRAINE IMPEACHMENT INQUIRY REPORT 83–139 (2019) [hereinafter Impeachment Report].
[8] See 52 U.S.C. § 30109(d) (2018).
[9] See Prohibiting Foreign Election Assistance Act of 2019, H.R. 3395, 116th Cong. (2019).
[10] Daniel Scott Savrin, Note, Curtailing Foreign Financial Participation in Domestic Elections: A Proposal to Reform the Federal Election Campaign Act, 28 VA. J. INT’L L. 783, 790-91 (1988).
[11] Id. at 791.
[12] Id. at 791–93.
[13] Gaughan, supra note 5.
[14] Id. at 802; see also 52 U.S.C. § 30109(d) (2018).
[15] Savrin, supra note 10, at 793; see 52 U.S.C. § 30121 (2018).
[16] Bluman v. Fed. Election Comm’n, 800 F. Supp. 281, 283–84 (D.D.C. 2011).
[17] Id.
[18] See, e.g., Indictment, United States v. Parnas, 19-cr-725 (S.D.N.Y. 2019); Indictment, United States v. Khawaja, 1:19-cr-374 (D.D.C. 2019); Indictment, United States v. Michel, 19-cr-141-1 (D.D.C. 2019).
[19] 11 C.F.R. § 100.52 (2014).
[20] Cf. FEC MUR No. 5409, at 10 (2004) (holding that the Bush-Cheney campaign had violated the corporate contributions ban).
[21] FEC Advisory Op. No. 2007-22, at 6 (2007).
[22] FEC MUR 6414 at 13–20 (2012).
[23] Chair Ellen L. Weintraub, Fed. Election Comm’n, The Law of a ‘Thing of Value’ (Oct. 2019), https://www.fec.gov/resources/cms-content/documents/2019-10-ELW-the-law-of-a-thing-of-value.pdf.
[24] Id. at 2.
[25] See id.
[26] See, e.g., 15 U.S.C. §§ 78dd-1, 78dd-2, 78dd-3 (2018); 18 U.S.C. §§ 201, 210, 211, 226, 641, 666 (2018).
[27] See United States v. Renzi, 769 F.3d 731, 744 (9th Cir. 2014).
[28] United States v. Nilsen, 967 F.2d 539, 542–43 (11th Cir. 1992) (per curiam).
[29] United States v. Barraza, 655 F.3d 375, 384 (5th Cir. 2011) (detailing honest services fraud (bribery) prosecution).
[30] United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986) (detailing § 201 gratuities prosecution).
[31] See United States v. Girard, 601 F.2d 69, 71 (2d Cir. 1979) (citing People v. Hochberg, 62 A.D.2d 239, 246–47 (N.Y. App. Div. 1978)).
[32] See, e.g., United States v. Matzkin, 14 F.3d 1014, 1020 (4th Cir. 1994); United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985); United States v. Sheker, 618 F.2d 607, 609 (9th Cir. 1980); Girard, 601 F.2d at 71.
[33] 618 F.2d at 607.
[34] Id. at 609.
[35] Id. (emphasis added).
[36] Mueller Report, Vol. 1, supra note 1, at 187.
[37] See, e.g., McDonnell v. United States, 136 S.Ct. 2355 (2016); Skilling v. United States, 561 U.S. 358 (2010).
[38] 136 S.Ct. at 2355.
[39] Id. at 2368 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)).
[40] 18 U.S.C. § 201(a)(3) (2018).
[41] McDonnell, 136 S.Ct. at 2369.
[42] Id. at 2371–72.
[43] Compare id., with 52 U.S.C. § 30121(a)(1)(A) (2018). See also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225 (2008).
[44] 552 U.S. at 214.
[45] See id. at 225.
[46] Eugene Volokh, Can It Be a Crime to Do Opposition Research by Asking Foreigners for Information?, WASH. POST: THE VOLOKH CONSPIRACY (July 12, 2017, 1:18 PM), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/12/can-it-be-a-crime-to-do-opposition-research-by-asking-foreigners-for-information/.
[47] See Note, Defining the Press Exemption from Campaign Finance Restrictions, 129 HARV. L. REV. 1384, 1392 (2016).
[48] Cf. id. (stating that “the FEC has almost always found a traditional media corporation to be acting within its press exemption.”).
[49] See Richard Hansen, Donald Trump Jr.’s Free Speech Defense, SLATE: JURISPRUDENCE (July 12, 2017, 4:38 PM), https://slate.com/news-and-politics/2017/07/donald-trump-jr-s-free-speech-defense-is-as-bogus-as-it-sounds.html.
[50] See 11 C.F.R. § 100.52 (2014).
[51] See Fed. Election Comm’n, Advisory Opinion 2007-22 (Hurysz), at 5 (2007).
[52] See Zachary J. Piaker, Note, Can “Love” Be A Crime? The Scope of the Foreign National Spending Ban in Campaign Finance Law, 118 COLUM. L. REV. 1857, 1886–87 (2018).
[53] Id. at 1887.
[54] See id. at 1887–91.
[55] 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012).
[56] Id. at 282–83.
[57] Id. at 288.
[58] Id.
[59] Id. at 290.
[60] Id. at 288.
[61] Piaker, supra note 52, at 1885.
[62] See 52 U.S.C. § 30109(d) (2018).
[63] Id.
[64] Mueller Report, Vol. 1, supra note 1, at 187 (citing Bluman, 800 F. Supp 2d at 292).
[65] See id.
[66] See 52 U.S.C. § 30109(d)(1)(A) (2018).
[67] 52 U.S.C. § 30118 (2018).
[68] 52 U.S.C. § 30122 (2018).
[69] See 52 U.S.C. §§ 30109(d)(1)(B), 30109(d)(1)(D) (2018).
[70] 52 U.S.C. § 30124 (2018).
[71] 52 U.S.C. §§ 30109(d)(1)(C) (2018).
[72] See 52 U.S.C. § 30109(d)(1)(A).
[73] Anna Schecter & Keir Simmons, Emin Agalarov, Russian Singer Linked to Trump Family, Cancels Upcoming North American Tour, NBC NEWS (Jan. 21, 2019 2:09 PM), https://www.nbcnews.com/news/investigations/emin-agalarov-russian-singer-linked-trump-family-cancels-upcoming-tour-n960981.
[74] Mueller Report, Vol. 1, supra note 1, at 110.
[75] Id. at 111.
[76] Id. at 111–13.
[77] Id. at 113.
[78] Id. at 114–17.
[79] Id. at 185.
[80] Id. at 117–18.
[81] Id.
[82] Id. at 117.
[83] Id. at 187–88.
[84] Id. at 188.
[85] See id.
[86] See id. at 38–50.
[87] See id. at 12–26, 51–66.
[88] See id. at 67–82.
[89] Michael S. Schmidt, Sondland Updates Impeachment Testimony, Describing Ukraine Quid Pro Quo, N.Y. TIMES (Nov. 5, 2019), https://www.nytimes.com/2019/11/05/us/politics/impeachment-trump.html.
[90] See Impeachment Report, supra note 7, at 83–97.
[91] See id. at 98–108; Davey Alba, Debunking 4 Viral Rumors About the Bidens and Ukraine, N.Y. TIMES (Oct. 29, 2019), https://www.nytimes.com/2019/10/29/business/media/fact-check-biden-ukraine-burisma-china-hunter.html.
[92] Official Readout: President Trump’s July 25 Phone Call with Ukraine’s Volodymyr Zelensky, WASH. POST (Sept. 25, 2019, 10:19 AM), https://www.washingtonpost.com/context/official-readout-president-trump-s-july-25-phone-call-with-ukraine-s-volodymyr-zelensky/4b228f51-17e7-45bc-b16c-3b2643f3fbe0/.
[93] See Impeachment Report, supra note 7, at 108–25.
[94] See id. at 125, 129.
[95] Id. at 133–34.
[96] Id. at 145.
[97] See id. at 146.
[98] See id. at 140.
[99] Id. at 142.
[100] Nicholas Fandos & Michael D. Shear, Trump Impeached for Abuse of Power and Obstruction of Congress, N.Y. TIMES (Dec. 18, 2019), https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html.
[101] Press Release, Jordan Libowitz, New Analysis: Every Impeachment Trial Has Had New Witnesses, CITIZENS FOR RESPONSIBILITY & ETHICS IN WASHINGTON (Jan. 28, 2020), https://www.citizensforethics.org/press-release/new-witnesses-impeachment/.
[102] Nicholas Fandos, Trump Acquitted of Two Impeachment Charges in Near Party-Line Vote, N.Y. TIMES (Feb. 5, 2020), https://www.nytimes.com/2020/02/05/us/politics/trump-acquitted-impeachment.html.
[103] See Rosalind S. Helderman & Tom Hamburger, As Impeachment Trial Ended, Federal Prosecutors Took New Steps in Probe Related to Giuliani, According to People Familiar with Case, WASH. POST (Feb. 14, 2020, 11:00 PM), https://www.washingtonpost.com/politics/as-impeachment-trial-ended-federal-prosecutors-took-new-steps-in-probe-related-to-giuliani-according-to-people-familiar-with-case/2020/02/14/7893bfb0-4e8a-11ea-bf44-f5043eb3918a_story.html.
[104] See supra, Section II-B.
[105] Mueller Report, Vol. 1, supra note 1, at 188.
[106] See supra Section II-B.
[107] See Buckley v. Valeo, 424 U.S. 1, 46–47, 78 (1976).
[108] H.R. 3395.
[109] Id.
[110] See id.
[111] Id.
[112] Id.
[113] See id.; 18 U.S.C. § 30109(d) (2018).
[114] See Prohibiting Foreign Election Assistance Act of 2019, H.R. 3395, 116th Cong. (2019).
[115] Id.
[116] See Bluman v. Fed. Election Comm’n, 800 F. Supp. 281, 288 (D.D.C. 2011).
[117] See Volokh, supra note 46.
[118] See id.
[119] See Bluman, 800 F. Supp. 2d at 285–86; Piaker, supra note 52, at 1894.
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