Trump’s Lawyer Is Wrong: “Information” from a Foreign Government Can Violate the Law

Patrick Philbin speaking at a podium
Counsel to the President Patrick Philbin makes arguments against the removal from office of US President Donald J. Trump during the President's impeachment trial in the US Senate in the US Capitol in Washington, DC on Saturday, January 25, 2020. Photo by US Senate Television via CNP /MediaPunch.

Asking foreign governments for dirt on political rivals is entirely permissible, and might even be good for democracy, President Trump’s lawyer told the Senate on Wednesday.

“Mere information is not something that would violate the campaign finance laws,” deputy White House counsel Pat Philbin argued at the president’s impeachment trial.  

In many ways, Philbin’s argument is a distraction: President Trump and his team weren’t really seeking information from Ukraine about the Bidens. What they actually wanted was the public announcement of an investigation into the President’s political rival, according to testimony from multiple witnesses and other evidence.

Yet Philbin’s effort to set up a straw man—that Trump was after “information”—and then knock it down led to a legally flawed declaration that, if accepted, would have dangerous consequences for the integrity of U.S. democracy and our right to self-governance.  

Philbin acknowledged that the law bars candidates from accepting money from foreign nationals, but declared that accepting “credible information of wrongdoing by someone who is running for a public office,” even from a foreign government, “is not campaign interference.”  (Diplomatic channels exist for foreign actors to share evidence of alleged lawbreaking with U.S. officials, but that’s not the situation being described here.)

Instead, Philbin declared, "it's relevant information for the voters to know about for people to be able to decide on who is the best candidate for an office." 

But just as it’s illegal for a foreign government to give a $100,000 check to a candidate, it is also illegal for that foreign government to spend $100,000 digging up dirt on a candidate’s rivals, and then giving the resulting information to the candidate. 

The Federal Election Commission (FEC) has long held that an intangible item like information or opposition research (or, for that matter, an email list) can constitute a “contribution” for purposes of campaign finance law, since information is a “thing of value.”  

These interpretations were cited by Special Counsel Mueller, whose report noted that “[a] campaign can be assisted not only by the provision of funds, but also by the provision of derogatory information about an opponent.” 

To be sure, information doesn’t always amount to a contribution. The FEC has allowed foreign nationals to volunteer on campaigns (as long as no one else is paying them), and under certain circumstances, an individual foreign national may voluntarily respond to questions from a campaign, on their own time, as long as no foreign sources are paying them, and no foreign money was used to generate the information. 

But if, as President Trump’s lawyer argued, "information” is categorically beyond the reach of campaign finance law, then a candidate could outsource their opposition research operation to a foreign government’s intelligence apparatus.  

A foreign government could direct its intelligence service to target every potential U.S. candidate and dig up incriminating details (or even lure them into compromising scenarios). 

The foreign government then could choose which candidates it wants to support and provide them dirt about their opponents – and accepting that information, according to Trump’s legal team, would be entirely legal, and perhaps even good for democracy.  

Needless to say, such a scenario would undermine the right of U.S. voters to decide U.S. elections.  

Ultimately, however, President Trump was after a public announcement, rather than mere “information.” That too may be a “thing of value:” Trump was effectively asking Ukraine to spend resources on an announcement and investigation for the purpose of influencing the 2020 U.S. election.

President Trump using the authority of his office and congressionally mandated funds to press a foreign power into announcing such an investigation implicates campaign finance law—but more importantly, it is a stunning abuse of power.

Brendan directs CLC’s work before federal regulatory agencies, such as the Federal Election Commission (FEC).