Get ready for the latest defense for Donald Trump Jr.’s actions: He had a First Amendment right to collude with the Russians to get dirt on Hillary Clinton. This defense, which has been advanced by noted First Amendment expert Eugene Volokh and others, posits that he cannot be charged under campaign finance laws for soliciting a foreign contribution because seeking and providing such information would be protected political speech, or at least protected for an American to receive. It’s a dangerous argument which fails to recognize the compelling interest promoted by Congress’s ban on foreign contributions: specifically guarding American self-government against foreign intrusion. Let’s first start with the statute Trump Jr. may have violated. Federal law makes it a potential crime for any person to “solicit” (that is, expressly or impliedly ask for) the contribution of “anything of value” from a foreign citizen. While we do not know enough to say that Trump Jr. should be charged with violating this statute, emails released by Trump Jr. himself on Tuesday (as the New York Times was about to report on them) provide more than enough detail to merit an investigation by special counsel Robert Mueller.
We know that Trump Jr. got an email from his friend stating that the “Crown prosecutor of Russia” had “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” This “high level and sensitive information” was being presented as “part of Russia and its government’s support for Mr. Trump.”
Trump Jr. replied almost immediately: “If it’s what you say I love it especially later in the summer.”
It seems obvious that “I love it” constitutes solicitation in this instance. And there is a very strong argument to be made that “very high level and sensitive information” coming from the government of Russia is a “thing of value” for purposes of federal campaign finance law. The Federal Election Commission has said that providing free polling information to a candidate is a thing of value. It has said that when Grover Norquist’s Americans for Tax Reform gave a list of conservative activists in 37 states to the Bush–Cheney campaign in 2004, this was a thing of value which had to be reported by the campaign, even if the list was publicly posted on the group’s website. It said that Canadian campaign literature which an American candidate wanted to borrow from in his own campaign is a thing of value, even if its value is “nominal or difficult to ascertain.” It said that opposition research provided by a political group to Republican candidates can count as an in-kind contribution. And a federal court, in the prosecution of New Jersey Sen. Robert Menendez, said that a thing of value need only have subjective value to the recipient.