More problems with the campaign finance charge against Don Jr.

The statute we’ve been discussing as the basis for prosecuting Don Jr (based only on what we already know) is 52 USC 30121, soliciting a contribution or “thing of value” from a foreign national. In addition to the problem of applying “a thing of value” to general information and meetings (a 1st Amendment problem and a line-drawing problem, as I’ve written before), it’s also a problem that the conduct might not even be criminal under the statute.

I’ve been trying to find any mention that there is a criminal penalty for 52 US 30121 as applied to Don Jr’s attempt.  This section does not mention criminal liability (jail or criminal fine), nor does the other section in the statute that covers enforcement across the sections, 52 USC 30109 (it doesn’t mention 30121 at all). The only possible criminal penalty would be in 30109(d)(1)(a), but only if the value of the contribution or “thing” exceeds a threshold of $2,000 or $25,000. It’s hard to put any value on the completely ambiguous prospect of some information, and of course, at this stage, the parties claim the value was zero (I’m skeptical, but we are only working with what we know now).  Some have cited government webpages or cases with criminal prosecutions under 30121, but those cases apply only when there was a contribution over those dollar value thresholds, unlike this case.

The bottom line is that it’s not clear that the statute offers any criminal liability for Don Jr, even if the text of the statute (“thing of value”) could apply to the Russia lawyer’s offer of information.


Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

One thought on “More problems with the campaign finance charge against Don Jr.”

  1. I suspect that Don, Jr. is largely a side show to the investigation in any event, although clearly his e-mail statements confirm an intent to collude, if nothing else. How that translates into criminal activity is another matter, but in the case of impeachment actions that may be irrelevant as a breach of public trust may be the more relevant standard in impeachment. Having said that, I do think that your general comments about the difficulty of defining value are relevant in general but not in this case. The value is easy to determine because he has characterized the meeting as an opportunity to obtain opposition research. The consulting value of that is both easy to determine and quite large. Look at the fees billed by Kellyanne Conway to the Trump Campaign — a seven-figure amount. So, he was offered something of value by a foreign national (actually, two foreign nationals — the Russian and Rob Goldstone as agent) for purposes of affecting the campaign. The fact that the information is potentially ambigusous as perhaps protected speech becomes irrelevant in this case because the defendant has already told us what it was to him — opposition research that has an easily quantifiable value.

    Also, he made it quite clear that he wanted to use it to affect the election — later in the summer when it have more bang for the buck.

    I suspect that this was all an effort to see if the Trump campaign would play along with Russian efforts and in fact it confirmed exactly what they wanted confirmed. Trump campaign affiliates wanted the information and they wanted it at a time when it would do the most good.

    In fact, they got it. The release of the WikiLeaks on the day of the Access Hollywood tapes proved to be the most effective possible counter-attack to the disclosure of the incredibly vulgar and in my view illegal behavior of the person elected President of the US.


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