In the News

Reuters: Trump says ‘too bad’ after Cohen audio recording released

By Eric Beech, Karen Freifeld, and Warren Strobel

A lawyer for Cohen, Lanny Davis, released the recording of Trump and Cohen discussing paying for the rights to a Playboy model’s story about an alleged affair with Trump and it aired on CNN on Tuesday Night.

Government watchdog group Common Cause has said that the proposed payment benefited Trump’s presidential election campaign and the failure to document it was potentially illegal.

Some legal experts, however, say that if the payment was made for personal reasons, it would not run afoul of federal election laws.

Under U.S. election law, presidential candidates must disclose expenses, loans and campaign contributions, which are defined as things of value given to a campaign in order to influence an election.

Trump lawyer Rudy Giuliani has said the proposed payment was a personal matter and not subject to campaign finance law…

Bradley Smith, a professor at Capital University Law School and former chairman of the Federal Election Commission, said that Trump could have considered making the payment for reasons unrelated to the election.

“People in Trump’s position have all kinds of reasons for making these kind of payments, like family harmony or retaining commercial viability,” said Bradley Smith, a professor at Capital University Law School and former chairman of the Federal Election Commission.

State Policy Network: Institute for Free Speech commemorates NAACP v. Alabama 

By Matt Nese

The Institute for Free Speech honored the 60th anniversary of the landmark US Supreme Court case, NAACP v. Alabama. The Court’s unanimous ruling protected the privacy of the NAACP and its members at the height of the civil rights movement. Today, it stands as one of the most important precedents protecting the right of nonprofits to advocate on issues free from burdensome government disclosure mandates.
To commemorate this important victory for privacy and free speech – and to raise awareness of the threats the ruling faces today – Institute for Free Speech experts authored an issue brief on the case, wrote op-eds for The Wall Street Journal and The Washington Examiner, and participated in a debate at the Cato Institute on the decision’s legacy…

As the Court wrote in its decision, “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action…”

Despite NAACP v. Alabama’s clear articulation of the right to associational privacy, state governments often jeopardize this cherished freedom with vague and over broad disclosure laws…

Every legislative session, IFS discovers and analyzes bills in state legislatures that would violate the privacy of nonprofits and their supporters. Raising awareness of NAACP v. Alabama and the importance of associational privacy is key to pushing back against this dangerous trend.

The Courts

Fox News: Fusion GPS ordered to give deposition in civil suit against BuzzFeed, Christopher Steele

By Pamela K. Browne and Cyd Upson

A federal judge in Florida this week ordered Fusion GPS, the opposition research firm that commissioned the infamous anti-Trump dossier, to give a deposition in a multimillion-dollar lawsuit against BuzzFeed News and the former British spy who compiled the dossier.

In a 16-page ruling filed Thursday, U.S. District Judge Ursula Ungaro rejected claims by Fusion that sitting for a deposition would “require disclosure of confidential business relationships” and “implicate Fusion GPS’ First Amendment rights.” Ungaro also wrote that Fusion must answer questions about what ex-MI6 spy Christopher Steele was told about the nature of his assignment to compile the dossier…

Russian tech guru Aleksej Gubarev has filed civil claims in the U.S. and the U.K. against BuzzFeed and Steele. He claims his companies, Webzilla and XBT Holdings, were defamed by Steele after the BuzzFeed published the dossier on Jan. 10, 2017…

Steele and his company, Orbis Business Intelligence, were hired by Simpson’s U.S.-based Fusion to work on the dossier and promote its contents to journalists. Fusion received $1.8 million via the law firm Perkins Coie, which was paid by the Democratic National Committee and the Hillary Clinton presidential campaign.

NPR: Legal Opinions Or Political Commentary? A New Judge Exemplifies The Trump Era

By Carrie Johnson

Ho’s first opinion, in April, was a dissent in a case involving limits on campaign contributions in Austin, Texas. Candidates for municipal elections – people like mayors and city council representatives who represent fewer than 100,000 people – are barred from accepting donations of more than $350.

A three-judge panel on the appeals court upheld the ordinance, and a majority of the judges on the court voted to keep it that way.

Ho took a different approach, penning a 13-page dissent arguing the full court should hear the dispute. Ho said the contribution limit violated the First Amendment… 

Then, Ho cited the Supreme Court ruling in NFIB v Sebelius – the case in which a divided court majority upheld the Affordable Care Act, also known as Obamacare.

Wrote Ho:

“If we’re going to ask taxpayers to devote a substantial portion of their hard-earned income to fund the innumerable activities of federal, state and local government, we should at the very least allow citizens to spend a fraction of that amount to speak out about how the government should spend their money.” …

Eugene Volokh, a professor at the UCLA School of Law, said he’s been following Ho for years.

“What we’re seeing from Judge Ho is a judge who, because he’s really interested in law and ideas, wants to write more about the bigger picture,” he said. “It’s indisputable that he’s writing opinions that express particular ideas that some people disagree with, even sharply disagree with.”

Congress

HuffPost: Democrats Propose Making It Illegal To Spread False Election Information

By Sam Levine

Several congressional Democrats plan to introduce legislation Thursday that would make it a federal crime to knowingly and intentionally publish false information about elections.

The legislation would criminalize knowingly spreading wrong information related to the time and place of elections as well as voter qualifications and registration status. The bill would also make it illegal to knowingly claim an endorsement from someone within 60 days of a federal election. Anyone who spread such misinformation would be subject to up to five years in prison and a $100,000 fine.

The measure is being introduced by Democratic Sens. Claire McCaskill (Mo.), Ben Cardin (Md.), Doug Jones (Ala.) and Patrick Leahy (Vt.). Democratic Reps. A. Donald McEachin (Va.) and Jerry Nadler (N.Y.) plan to introduce companion legislation in the House…

Justin Levitt, a former Justice Department official charged with enforcing voting rights, said in an interview there is no federal statute that clearly prohibiting acts like telling people to vote by text message or on a Wednesday for a Tuesday election.
“That’s not currently illegal under most circumstances,” said Levitt, now a professor at Loyola Law School in Los Angeles … 

While the Supreme Court has afforded significant protections to political speech, Levitt said, that does not preclude such a law, “as long as it’s really focused on logistical falsity rather than disputed campaign positions.” 

Intimidation  

Wall Street Journal: McCaskill’s Intimidation Game

By Kimberley A. Strassel

[I]n Missouri as elsewhere, candidates are reverting to personal attacks. But the McCaskill forces are piling on a guy who isn’t even running.

Indeed, they are attacking a private citizen and donor, David Humphreys. Back in March, Chuck Schumer’s Senate Majority PAC began plowing millions into attacks on the businessman, who donated to Mr. Hawley’s campaign for attorney general. The pattern is the same: An ad makes a malicious accusation against Mr. Humphreys, then sidles over to tar Mr. Hawley with guilt by association. Just how invested are they in this strategy? Since airing their first spot, 70% of Democratic ads-amounting to $4.7 million-have been focused on Mr. Humphreys…

Beyond the smears against Messrs. Hawley and Humphreys, such ads are a warning to other donors. Don’t get involved, or your reputations and businesses will be next. Intimidation and threats, leveled against private citizens, are now standard liberal practice. If they can’t win the argument, they can take out the opponent. And it explains the new liberal push at the state level (including in Missouri) for more donation and nonprofit “disclosure.” It isn’t about transparency in the public interest; it’s about identifying new political targets.

Ms. McCaskill should explain why she’s unwilling to debate the issues-or, for that matter, her actual opponent.

Online Speech Platforms

Reason: Twitter Sucks Because We Suck. Don’t Blame @Jack

By Mike Godwin

[S]hort of having a system in place in which all users’ tweets are prescreened by an editor before they become public, we’re not going to see any top-down editorial policy-even one informed by complaints from the user community-that works well on the kind of large platform that Twitter is (and that Facebook and other social-media platforms are). Heavy top-down administrative moderation may have worked well enough on the smaller private forums, and on the PC-based bulletin board systems (BBSes) of decades ago. But if the large-scale dominant platforms-not just today’s, but tomorrow’s as well-are pressured into censoring more and more content, the complexity of identifying what really counts as “abusive” speech guarantees that some large fraction of the user population will be unhappy with the results.

The platform companies know this. They’re (mostly) quite aware that Section 230 of the Communications Decency Act (including its most recent amended version) gives them the right to curate user content. They’re also painfully aware that invoking that right leads both to higher expectations of editorial control and to more and more dissatisfaction as users disagree with particular editorial decisions. Even so, Twitter, like all the other dominant platforms, is investing more in finding ways to reduce user complaints about abusive content. But until we have built our Ironic A.I., the best fix is still to remind users they can make their own decisions about what to say and what to hear.

FEC

Wisconsin Gazette: Complaint alleges NRA used shell company to unlawfully coordinate with Johnson’s campaign

By Lisa Neff

A complaint filed with the Federal Election Commission alleges the National Rifle Association violated U.S. law by using a common vendor to illegally coordinate with Ron Johnson’s 2016 campaign and three other Senate campaigns.

The complaint was filed by the Campaign Legal Center…

CLC, citing a July 13 report by Politico Magazine, says the GOP consulting firm OnMessage set up a shell corporation called Starboard. The corporation was located at the same site as OnMessage and was virtually indistinguishable from its parent firm.

Starboard’s apparent purpose was to help the NRA evade FEC rules. As a result, the NRA may have made millions in illegal and excessive in-kind contributions, according to the CLC.

“There is substantial evidence that the NRA funneled millions through a shell corporation to unlawfully coordinate with candidates it was backing,” stated Brendan Fischer, director of federal reform at the CLC. “The NRA using inside information about a candidate’s strategy to create ‘independent’ ads supporting him creates an unfair advantage and it violates the law.”

The Media 

CNN: The press unites around a banned reporter — and it’s about time

By SE Cupp

In a rare rebuke from Trump’s preferred news outlet, Fox News, anchor Bret Baier read a statement from the network in defense of none other than the President’s favorite news foe, CNN:
“Just because the White House is uncomfortable with a question regarding the news of the day doesn’t mean the question isn’t relevant and shouldn’t be asked. This decision to bar a member of the press is retaliatory in nature and not indicative of an open and free press. We demand better. As a member of the White House press pool, Fox stands firmly with CNN on this issue of access.”

Further, Fox News President Jay Wallace, who worked for many years alongside White House deputy chief of staff for communications (and former Fox executive) Bill Shine, issued his own statement, reading: “We stand in strong solidarity with CNN for the right to full access for our journalists as part of a free and unfettered press.”

This stunning show of force all came after CNN’s Kaitlan Collins, representing five television networks as the pool reporter for the White House press corps, was banned from an open press event in the Rose Garden by Shine and press secretary Sarah Sanders for asking what they deemed inappropriate questions of the President during a pool spray earlier that day. Or, better put, doing her job…

Trump has profited off of his phony and juvenile “fake news” campaign since he came into office — sowing seeds of doubt in the veracity of verifiable reporting, stoking conspiracy theories that many of his supporters happily propagate and convincing wide swaths of people that the press writ large is an untrustworthy institution. And to great effect — trust in the media is at record lows.

Candidates and Campaigns

The Atlantic: Trump Exposes the Holes in Campaign-Finance Laws

By Bob Bauer

The Cohen tape is not helpful to the president, but because of the structure of campaign-finance rules, it may not be conclusive. The question for legal purposes is whether Trump would have made this payment even if he had not been a candidate.

Trump would argue that even if he had powerful political reasons to hide the McDougal relationship, he also had personal ones. He does not have to deny that politics played some part in his and Cohen’s plotting to bury the McDougal story. After all, he may contend, a revelation in the heat of the political season would be even more intensely covered and add considerably to whatever marital or family reaction he would have to deal with. And he could have both objectives in mind-to spare himself political as well as personal trouble. Under the rules, a dual motive is enough to muddy the legal waters…

One conclusion invited by this episode is that a rule triggered by the presence of a certain “purpose”-an election-related purpose-is not well-designed to address this and similar cases…

The campaign-finance law’s uncertainties are exposed in one other aspect of the case. Assume that the McDougal deal with AMI was a “catch and kill” enterprise meant to aid the Trump candidacy. No doubt AMI will plead that it was not playing politics and that its agreement with McDougal is protected under the campaign-finance law’s so-called media exemption…

The Federal Election Commission has never exhibited much appetite for fighting over press-exemption issues, and the Department of Justice would be similarly disinclined to pursue criminal cases in which “journalistic” purpose, or lack thereof, is litigated. But the protection of the exemption is only available to news organizations engaged in a legitimate press function-or, in the FEC’s words, acting as a “press entity” would.

CNN: Cohen claims Trump knew in advance of 2016 Trump Tower meeting

By Jim Sciutto, Carl Bernstein and Marshall Cohen

Michael Cohen, President Donald Trump’s former personal attorney, claims that then-candidate Trump knew in advance about the June 2016 meeting in Trump Tower in which Russians were expected to offer his campaign dirt on Hillary Clinton, sources with knowledge tell CNN. Cohen is willing to make that assertion to special counsel Robert Mueller, the sources said.

Cohen’s claim would contradict repeated denials by Trump, Donald Trump Jr., their lawyers and other administration officials who have said that the President knew nothing about the Trump Tower meeting until he was approached about it by The New York Times in July 2017.

Cohen alleges that he was present, along with several others, when Trump was informed of the Russians’ offer by Trump Jr. By Cohen’s account, Trump approved going ahead with the meeting with the Russians, according to sources.

To be clear, these sources said Cohen does not have evidence, such as audio recordings, to corroborate his claim, but he is willing to attest to his account.

Cohen privately testified last year to two Congressional committees investigating Russian interference in the 2016 election. A source familiar with Cohen’s House testimony said he did not testify that Trump had advance knowledge. Cohen’s claims weren’t mentioned in separate reports issued by Republicans and Democrats on the House Intelligence Committee.

ABC News: Roy Moore sues PAC over ads about misconduct accusations

By Associated Press

Defeated Senate candidate Roy Moore has filed a defamation lawsuit against a super PAC that ran an advertising blitz focused on sexual misconduct accusations against him during the campaign, his attorney announced Wednesday.
Moore’s attorney, Melissa Isaak, said Highway 31 super PAC ran defamatory and misleading ads during the 2017 race, including one that said Moore had been banned from the mall decades ago because of his behavior toward women…

The lawsuit names Highway 31 and related individuals as defendants, Isaak said…

During the 2017 U.S. Senate race, several women came forward and said Moore pursued sexual and romantic relationships with them decades ago when they were teens and he was a prosecutor in his 30s…

Moore is currently suing four of the women…

Moore has also threatened a lawsuit after being duped into appearing on Sacha Baron Cohen’s new television series.

Roll Call: The Power of Little Money Will Be Tested This Fall

By Kate Ackley

A pair of upstart, anti-lobbyist, anti-big-political-money groups from the left will be painting those large campaign coffers that Democratic incumbents amass as a bad thing. To defeat them in primaries, they hope to portray those incumbents as too tied to big-money interests.

These groups have their sights right now on several sitting Democratic lawmakers with upcoming primaries. This is likely just the beginning.

Like the Club for Growth did on the conservative side, these groups with roots in the Bernie Sanders presidential campaign, dubbed Justice Democrats and Brand New Congress, seek to “purify” political candidates, in this case of the toxicity of big donors…

[T]hey already scored a win when Alexandria Ocasio-Cortez scored a primary upset last month over 10-term New York Rep. Joseph Crowley, a member of House leadership…

Justice Democrats’ candidates, like those backed by Brand New Congress, must shun donations from registered lobbyists and corporate PACs.

“We’re trying to carve out a lane where we can empower candidates where they can compete with these other really big forces that are out there,” Thompson said.

Politico: 56 Democrats outraised GOP incumbents. Here’s where it could make a difference.

By Sarah Frostenson

The latest fundraising numbers for House races are in, and for the second time this year, Democrats outraised Republicans. Of the 59 challengers who outraised their incumbent opponent – 56 are Democrats and only three are Republicans.