In the News
National Review: Donald Trump’s Hush Money Did Not Violate Campaign-Finance Law
By Bradley A. Smith
In response to my recent column at National Review.com (and, in a sense, to earlier columns in the Washington Post and the Wall Street Journal), David French has written a piece arguing that President Trump’s payments to women alleging prior past affairs violated the Federal Election Campaign Act. The payments, and in particular the way they were funded and reported, are, he argues, “against the plain language and clear intent of applicable law.” I don’t know David, but I greatly admire his biography, his writing, and his reputation for integrity. I agree with David that the Cohen plea is a serious threat to Trump. The difference between us is that David seems to think that’s based on a correct interpretation of the law, and I think the U.S. Attorney is applying, and the courts are accepting, an incorrect interpretation of the law. That interpretation, I fear, will open a door to other breeds of corruption when applied outside of this case.
If you haven’t followed this debate, it’s probably best to go back and read my and David’s original columns in full. But in a nutshell, what David and the U.S. Attorney for the Southern District of New York have argued is that “hush money” payments can be regulated as campaign expenditures if “one of the reasons the payment is made is to influence the election.” (Internal quote omitted.) What I have argued is that not everything that is intended to influence an election is a campaign expenditure – that would open a loophole that would allow donors to ply candidates with funds for expensive clothing (have to look good on the campaign trail), lavish vacations (need to relax before that big debate), luxury vehicles (need a way to get to the campaign office), and more. Supporting my view is the statute’s requirement that campaign expenditures cannot be converted to personal use, and FEC regulations that define “personal use” to include obligations that exist “irrespective of” the campaign.
National Review: Yes, Donald Trump Is in Real Legal Jeopardy for Campaign-Finance Violations
By David French
Earlier today, Bradley Smith continued our conversation about whether Donald Trump’s hush-money payments violated federal election law. I say maybe – depending on the evidence. Unless I’m completely misreading Smith, he says no, hush-money payments cannot constitute criminal campaign-finance violations. Full stop.
To be very clear, as I acknowledge in my original piece arguing that Trump is in serious trouble, a judge may agree with Smith’s argument. There is no binding judicial precedent that is specifically on point. While I think it is meaningful that a federal judge permitted prosecutors to try John Edwards on a similar theory, I freely acknowledge that this determination does not bind a different court. I do believe, however, that the judge in Edwards’s case (and the prosecutors in the Southern District of New York) were following the natural and proper reading of the relevant statutes. Smith disagrees, and he’s no less than a former chairman of the Federal Election Commission. This debate is important. So let’s continue it.
Detroit News: A proactive measure to protect privacy
By Zac Morgan
Should state officials be able to make a list of the groups you’ve joined, volunteered for, or supported? Most of us would think the government is spying on us. Why would they need to know that information?
This isn’t some fantasy worry. In California and New York, without any public notice, bureaucrats began demanding charities fork over a list of their major donors or lose their license to solicit funds. Worse, in California, thousands of names were posted online due to bureaucratic bungling. Even a Planned Parenthood chapter’s supporters became public.
This week, the Michigan Legislature can help ensure those kind of abuses don’t happen in the Great Lakes State. On Tuesday, a Michigan House of Representatives committee will vote on the Personal Privacy Protection Act. The Senate already passed the measure.
The Act states that public agencies may not demand the membership, volunteer, or donor lists of nonprofits and charities. The Act presumes that what groups you join or support is private, not open to government officials’ prying eyes…
The Personal Privacy Protection Act will also prevent state or local officials from changing the rules without notice. As we have seen in the past few weeks, legislative debate in Michigan attracts attention. If privacy laws are to change, that debate should happen in the Legislature…
Some have objected to the Personal Privacy Protection Act on campaign finance grounds. This is a red herring. The Act expressly states that it does not change or weaken disclosures required by Michigan’s campaign finance laws. It only protects First Amendment freedom of association.
Oklahoma Watch: State Rule Would Disclose Hidden Backers of Groups Trying to Influence Legislation
By Paul Monies
The proposed rule before the Ethics Commission would mandate certain disclosures for groups that pay for communications about pending legislation…
The proposal drew criticism from lobbyists and representatives of several groups, including the American Legislative Exchange Council, Americans for Prosperity-Oklahoma and the Oklahoma Council of Public Affairs. They worried the disclosure requirements could curtail First Amendment protections for free speech and political activity.
Attorney A.J. Ferate, who presented comments and letters from ALEC, the Institute for Free Speech and People United for Privacy, said the U.S. Supreme Court in 1958 protected the NAACP’s membership list from being disclosed to Alabama. The state had tried to stop the civil rights organization from carrying out activities there.
“Anonymous speech is free speech as well, and the road you’re going down is a concerning one from the concept of history,” Ferate told the commission. “What I feel you’re trying to do is create a chilling effect on the activities that belong in public discourse.”
Lobbyist Dawn Watson told the commission she worried the rule could affect nonprofit organizations, which frequently ask their members to contact lawmakers about legislation via preformatted “action alerts.” She asked the commission to keep that in mind as it considers the rule.
“The idea behind a lot of this type of communication is to actually increase the involvement of real people in government,” Watson said. “The reason templates are provided is because they aren’t savvy with communicating with legislators and have a little fear there, so you provide them with a little training and background.”
The Courts
By Andreas Becker
Last year, we posted that a Georgia federal court held, in a lawsuit against CNN, that Georgia’s anti-SLAPP statute had no application in federal court. CNN appealed that decision and, last Thursday, the Eleventh Circuit agreed with the trial court and held that Georgia’s anti-SLAPP law does not apply in federal court. The case is Carbone v. Cable News Network, Inc., Case No. 17-10812 in the Eleventh Circuit Court of Appeals…
The Eleventh Circuit held that, taken together, Federal Rules of Civil Procedure 8, 12, and 56 provide an answer to the question of whether a federal court plaintiff’s “complaint states a claim for relief supported by sufficient evidence to avoid pretrial dismissal.” According to the Court, while those federal rules answer the question of sufficiency of a plaintiff’s claim by applying a plausibility standard and by requiring the plaintiff to demonstrate a triable issue of fact, the “Georgia anti-SLAPP statute answers the same question by requiring the plaintiff to allege and prove a probability of success on the merits” (emphasis added). This conflict forms the basis of the Court’s opinion, which holds that the anti-SLAPP law is inapplicable in federal court…
At bottom, the Eleventh Circuit held that, taken together, Rules 8, 12, and 56 “provide a comprehensive framework governing pretrial dismissal and judgment.” According to the Court, because the Georgia anti-SLAPP statute seeks to answer the same question as those federal rules, there is a conflict that renders the anti-SLAPP law inapplicable in federal court.
This decision places the Eleventh Circuit on the side of the D.C. Circuit and squarely at odds with the First, Fifth, and Ninth Circuits, all of which have applied state anti-SLAPP laws in federal court. Given this split between the circuits, will CNN ask the Supreme Court to weigh in?
Courthouse News Service: 4th Circuit Critical of Uncle Sam’s Robocall Loophole
By Brad Kutner
Defending a loophole to robocall laws carved out for the collection of federally backed loans, a lawyer for the government faced strident grilling Wednesday at Fourth Circuit oral arguments…
[Justice Department attorney Lindsey] Powell is pushing the Fourth Circuit to affirm after a federal judge in North Carolina agreed last year that the exemption, seen as an option to reign in national debt, was limited enough to avoid constitutional scrutiny.
Opposing that view are several political action committees and pollsters, led by the American Association of Political Consultants. “[The exemption] creates a content-based loophole for commercial calls,” said William Raney, an attorney for this group with the law firm Copilevitz and Canter.
For Raney, the moment the exemption gave room to debt collectors, even if backed by the federal government, it discriminated against other speech based on subject-matter, thus running afoul of the First Amendment.
Pointing to precedent, Raney recalled how the U.S. Supreme Court overturned a state law that banned picketing unless it involved labor disputes. Raney said that law similarly outlawed a form of speech except for a version based on content…
The Ninth Circuit has taken up a similar challenge but has not yet set a date for oral arguments.
Washington Post: Michael Flynn’s sentencing delayed after judge tells the ex-Trump adviser he may not avoid prison time
By Spencer S. Hsu, Matt Zapotosky and Carol D. Leonnig
A federal judge on Tuesday postponed the sentencing for Michael Flynn after he lambasted President Trump’s former national security adviser for trying to undermine his own country and said he could not guarantee he would spare Flynn from prison.
The stunning development means that Flynn will have to be sentenced at a later date, when he can possibly convince a judge more thoroughly of how his cooperation has benefited law enforcement.
Flynn’s attorneys asked for the delay after U.S. District Judge Emmet G. Sullivan accused Flynn of acting as “an unregistered agent of a foreign country, while serving as the national security adviser to the president of the United States” – an allegation he later walked back. Sullivan granted the request and asked for a status report in 90 days, though he said he was “not making any promises” that he would view the matter differently in three months.
After reviewing some of the allegations against Flynn, including that he worked to advance the interests of the Turkish government in the United States during the 2016 presidential campaign, the judge pointed to an American flag behind him in the courtroom and said heatedly, “Arguably, that undermines everything this flag over here stands for. Arguably you sold your country out.
“The court’s going to consider that,” the judge said. “I cannot assure you, if you proceed today, you will not receive a sentence of incarceration.”
Sullivan also asked a prosecutor with the special counsel’s office whether Flynn could be charged with “treason.”
First Amendment
First Amendment Coalition: Everyone Hates Julian Assange-Except For That Time They Used to Love Him
By David Snyder
Lawyers like to say that “bad facts make bad law.” Two recent legal cases involving Wikileaks could prove this maxim: the potential prosecution of Assange under the Espionage Act and the Democratic National Committee’s lawsuit against Wikileaks and Assange. Both could threaten the foundations of First Amendment protections-especially if the bipartisan Assange-hatred overcomes the blind administration of justice…
As unintentionally revealed by federal prosecutors last month, the government has apparently filed a sealed criminal indictment against Assange. It is unclear what he’s been charged with or if he can ever actually be extradited to the U.S. for prosecution. But one real possibility is that the government will charge Assange with violating the Espionage Act, a World War I-era statute that has been used periodically over the past 100 years to prosecute leakers of classified information.
To date, the Espionage Act’s targets have all been leakers in the first instance-people who took classified information and put it outside government control. Wikileaks is different, though: it’s a distributor of information originally leaked by somebody else. In other words, Wikileaks is a “publisher” in that term’s broadest sense.
As media advocates (including myself) have said again and again, an Espionage Act prosecution of a publisher or an individual journalist would cross a bright red line, bringing the very act of publishing within the scope of a harsh criminal statute in a way-we hope-the First Amendment does not permit…
Similar principles and pitfalls attend a lawsuit filed in April against Assange and Wikileaks by the Democratic National Committee. The DNC complaint accuses Assange and Wikileaks of various crimes related to the publication of stolen emails. Would the First Amendment protect that publication? Well, it depends.
Online Speech Platforms
Washington Post: Social media in crisis: After Senate reports, Facebook vows improvements, NAACP leads protest, Trump attacks
By Hamza Shaban and Taylor Telford
Facebook and Twitter on Tuesday were under attack from an array of critics, including the president and civil rights leaders, triggered by revelations from two reports on the long Russian social media campaign to interfere with the 2016 presidential election.
The Russians’ segmented messaging and disinformation targeted African Americans in particular, according to the reports for the Senate Intelligence Committee released Monday, prompting the NAACP to urge Americans to abandon the social network. Facebook chief operating officer Sheryl Sandberg said the company needs to do more to advance civil rights.
The reports for the Senate stated that Russian interference had “clearly sought to benefit the Republican Party – and specifically Donald Trump.”
The president asserted Tuesday morning, without evidence, that social media giants favor his political opponents by rigging their platforms against him. In a tweet, Trump slammed Facebook and Twitter, along with Google, claiming they “made it much more difficult for people to join” him.
Washington Post: We’re giving Russia’s trolling team too much credit
By Philip Bump
With each new revelation – The trolls bought ads! They had a budget of millions of dollars a month! – the understood scope of the effort expands outward and, therefore, appears to be ever bigger.
Particularly considering the scale of a presidential election, it wasn’t big. There’s no evidence that it really even had much of an effect. For all of the attention it has garnered and the novelty the effort admittedly involved, it doesn’t seem to have been worth the effort…
More broadly, there’s no evidence that the Russian social media efforts were particularly sophisticated in their targeting or messaging. (Most of the ads targeting Wisconsin, for example, ran during the primaries.) There’s little evidence that they achieved the sort of scale that would have any significant effect on voters.
Russia does seem to have altered the trajectory of the 2016 election. But this appears to have happened not by leveraging social media in clever and focused ways but by leveraging the traditional media to cover the WikiLeaks dumps.
Candidates and Campaigns
Sludge: Beto O’Rourke Removed From ‘No Fossil Fuel Money Pledge’ Following Sludge Report
By Alex Kotch
Texas Democratic Rep. Beto O’Rourke has been removed from a pledge he signed to reject large donations from fossil fuel PACs and executives, following a recent Sludge investigation of federal campaign finance records.
Sludge reported on Dec. 10 that the congressman had accepted dozens of contributions of over $200 from oil and gas executives and had not reported refunding them. Oil Change USA, which led a coalition of environmental and democracy organizations to create the No Fossil Fuel Money Pledge, attempted to reach O’Rourke’s campaign and congressional office but did not hear back. Nor did Sludge.
David Turnbull, strategic communications director at Oil Change USA, told Sludge on Tuesday that the group had just removed O’Rourke’s name from the list of signers.
The pledge stipulates that in signing it, “a politician and their campaign will adopt a policy to not knowingly accept any contributions over $200 from the PACs, executives, or front groups of fossil fuel companies-companies whose primary business is the extraction, processing, distribution, or sale of oil, gas, or coal.”
Turnbull told Sludge that he believes O’Rourke, who signed the pledge in late April, thought the pledge only barred him from accepting oil and gas PAC donations, although the pledge language was clear at the time.
The States
Wall Street Journal: Trump Foundation to Dissolve Amid Allegations of Misusing Funds
By Corinne Ramey
President Trump’s family foundation will dissolve under a judge’s supervision amid allegations the charity misused funds to further its namesake’s interests.
The agreement stems from a lawsuit, brought by the New York state attorney general’s office in June, alleging that Mr. Trump used the Donald J. Trump Foundation to pay legal settlements, further his 2016 campaign, and promote his businesses.
The deal, which still has to be signed by a judge, requires the attorney general’s office to approve the charities that will receive the foundation’s remaining assets. The lawsuit remains ongoing, the attorney general’s office said.
Alan Futerfas, a lawyer for the charity, said the foundation had been seeking to dissolve and distribute its remaining assets since the 2016 election. “Unfortunately, the NYAG sought to prevent dissolution for almost two years, thereby depriving those most in need of nearly $1.7 million,” he said, citing the amount of remaining assets.
“Today’s stipulation accomplishes a key piece of the relief sought in our lawsuit earlier this year,” New York Attorney General Barbara Underwood said in a statement. “Under the terms, the Trump Foundation can only dissolve under judicial supervision – and it can only distribute its remaining charitable assets to reputable organizations approved by my office.” …
Among the accusations in the suit is that, at a nationally televised fundraiser in Iowa, the foundation raised more than $2.8 million in a way designed to influence the 2016 election. Senior Trump campaign staff dictated the distribution of foundation funds, the suit claimed.
During a court hearing in October, a lawyer for Mr. Trump said that because all money raised went to charities, there was no tangible benefit to the campaign.
Colorado Politics: Newcomer Griswold plans a fast start as next secretary of state
By Ernest Luning
[Jena Griswold] said she’s meeting with the office’s staff to look at next year’s budget and is getting in touch with county clerks – many of whom endorsed Williams – and other groups, including America Votes and Common Cause, to work out her policy agenda.
“I want to do as much as we can to increase transparency. I think Colorado can be a leader on campaign finance transparency and disclosure,” she said. “I’ve been talking about wanting to audit campaign finance filings. We have to create the mechanism to do that.”
It’s premature to discuss what her legislative package might look like in detail, Griswold said, but it will likely include tweaking the legal definition of “electioneering” and requiring more “paid-for-by” disclosures on campaign material…
Griswold said she’s also exploring how to require more transparency from nonprofits whose donors to political campaigns are shielded under current law, including entities known as C4s – named after a section of the federal tax code.
“C4s don’t have to give to an [independent expenditure committee, or IE] at all. They can urge their donors to give directly to the IE. But in the instances where they want to, let’s make sure that real people are being reported,” Griswold said.
“The basic idea is, under constitutional law, you can’t require a C4 to blanket-disclose all its donors, because a donor might not want the money to be used politically. What we can do is put the burden on the C4 and say, ‘First and foremost, you don’t have to do any IE spending at all. If you choose to do so in Colorado, you have a duty to talk to your donors and ask them, “Do you want your money being spent for political purposes?”
