Yes, President Trump Violated Campaign Finance Law by Asking Ukraine for a “Favor”

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President Trump speaking on the phone
President Trump speaks on the phone in the Oval Office on September 4, 2019. Official White House Photo by Shealah Craighead. Public Domain.

President Trump pressed the newly elected Ukrainian president to open an investigation into a candidate challenging Trump in the 2020 U.S. presidential election. This is a stunning abuse of power; it also violates campaign finance law.  

A now-public whistleblower complaint details reports “from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign county in the 2020 U.S. election.” The complaint describes a July 25 phone call between President Trump and Ukranian President Volodymyr Zelensky during which Trump pressured the Ukranian president to investigate one of Trump’s political rivals.

The White House has released a summary of the July 25 call that corroborates the whistleblower’s account. In particular, the call summary indicates that, with Congressional aid for Ukraine on hold, Trump told Zelensky that U.S. support for his country has not always been “reciprocal,” and then asked Zelensky for a “favor”: to work with Trump’s personal attorney, as well as the U.S. Attorney General, to investigate Trump’s potential 2020 rival, Joe Biden.    

These facts not only reflect a startling abuse of executive power; they also unambiguously demonstrate that Trump broke the law by soliciting valuable assistance to his reelection efforts from a foreign government.

Trump’s direct request that Ukrainian President Zelensky work with Trump’s personal lawyer and use Ukraine’s government resources to investigate Trump’s political opponent served no apparent purpose other than to benefit Trump’s reelection efforts. In other words, Trump solicited a campaign contribution from President Zelensky.

In the campaign finance world, a “contribution” is any “thing of value” given to affect an election.

There is no doubt that a foreign government’s search for damaging information about a candidate’s political opponent would be valuable to that candidate. As Special Counsel Mueller noted, “[a] foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.”

By directly requesting or suggesting that President Zelensky use Ukraine’s resources to help his reelection efforts, Trump violated campaign finance law.

(More technically, Trump asked Ukraine to make an “expenditure” by spending resources for the purpose of the influencing the 2020 election. An “expenditure” that is coordinated with a candidate is a campaign contribution; “coordinated” means made at the “request or suggestion” of a candidate. So Trump requesting that Ukraine make an expenditure means that he solicited a contribution.)

The Justice Department initially blocked transmission of the whistleblower complaint to Congressional intelligence committees, apparently based on the department’s own determination, according to a spokesperson, that “there was no campaign finance violation and that no further action was warranted.”

 It is unclear whether Attorney General Barr was involved in that determination; such involvement would be highly improper given that Barr was specifically identified by name as a conduit for the illegal solicitation alleged in the complaint.

But even setting aside the question of Barr’s participation, DOJ’s reasons for concluding that no campaign finance violation occurred are murky, and whatever the rationale, the conclusion is wrong.

Some reports indicate the Justice Department concluded that what Trump solicited—a Ukrainian government probe into one of President Trump’s political rivals—did not constitute a “thing of value” for purposes of campaign finance law. This is unsupportable.

The Federal Election Commission (FEC) has long held that intangible items like opposition research can be things of value, an interpretation specifically 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.”

Other media reports have stated that even if Trump did solicit a “thing of value” by asking Zelensky to dig up dirt on Biden, the Justice Department’s “analysis of Trump’s call essentially started and ended with the decision that a Ukrainian investigation into Biden could not be assigned a specific value.”

In other words, a foreign probe into a political rival may be a “thing of value,” but quantifying that value is impossible. An unnamed “senior Justice Department official” told the Washington Post that “[i]f you cannot quantify what the thing of value would be, then it’s fatal.”

This conclusion too is unsupportable.

For a campaign finance violation to be a crime, the “thing of value” must exceed $2,000 for a misdemeanor violation, or $25,000 for a criminal felony violation. The requested government investigation into Biden would almost certainly cost Ukraine over $2,000 to conduct, and it would absolutely be worth over $2,000 to Trump’s campaign.

But even if Justice Department attorneys truly believed that the solicited “thing of value” did not exceed $2,000 or $25,000, then it only means that Trump did not commit a prosecutable campaign finance crime. It does not mean, as a Justice Department spokesperson asserted, that “there was no campaign finance violation.”

While criminal campaign finance violations must exceed certain monetary thresholds, a civil campaign finance law violation does not depend on the value of the solicited contribution. A person who solicits any “thing of value” from a foreign national may be subject to civil penalties.

As the FEC has previously noted, “in light of the broad scope of the prohibition on contributions from foreign nationals” the law bans the solicitation of a foreign national for anything of value, even if the value “may be nominal or difficult to ascertain.”

Undoubtedly, there are legitimate reasons why the Justice Department might choose not to pursue a criminal campaign finance prosecution here.

For one thing, under the Department’s policies, a sitting president cannot be indicted. And the campaign finance violations are intertwined with the president’s wide latitude to conduct diplomacy and engage with foreign leaders, an area that the judicial system is not well-equipped to address in the context of a criminal case.

The DOJ, however, did not cite factors like these to explain its decision; instead, the Justice Department broadly declared that “there was no campaign finance violation.” That’s just wrong.

Brendan directs CLC’s work before federal regulatory agencies, such as the Federal Election Commission (FEC).
Erin works on appellate and district court litigation and Federal Reform and State & Local Reform programs.