Election law experts are divided on what crimes, if any, Hillary Clinton may have violated by hiring former British spy Christopher Steele to compile dirt on Donald Trump during the 2016 campaign.
Some experts believe Clinton and the Democratic National Committee may have violated a ban on foreign contributions to campaigns, though others disagree and emphasize potential disclosure violations by filtering payments through a law firm.
The Clinton campaign was long suspected of paying for Steele’s “dossier” that claims Russia may have incriminating information on Trump. Its role and that of the DNC was confirmed this week by multiple news outlets. A still-unidentified GOP donor initially funded the Fusion GPS-contracted probe.
The law firm Perkins Coie received $5.6 million for “legal fees” from the Clinton campaign and $3.6 million for “legal and compliance consulting” from the DNC while the dossier was written, an unknown share of which reportedly went to Fusion GPS, which paid Steele.
“I think disclosure is not the key here, it’s the foreign issue: that is a big damned deal,” said attorney Cleta Mitchell, a Republican election law expert and partner at the law firm Foley & Lardner LLP.
“There’s been no allegation that the Trump campaign went out looking for ways to get those Russians to manipulate the election for Trump, but now you have these payments to a foreign national,” she said.
“There’s this strong public policy historically that prohibits paying a foreign national or receiving anything of value from a foreign national in a U.S. campaign,” Mitchell said. “If it involves an amount over $25,000 and it’s knowing and willful, it’s a felony.”
Mitchell points to the words “expenditure” and “disbursement” in 11 CFR 110.20, and says it will be important to learn more about Steele’s citizenship, residency, interaction with other foreigners and the ownership of Fusion GPS.
Hans von Spakovsky, a former Federal Election Commission member who now works at the Heritage Foundation, shared a similar view when asked to evaluate Mitchell’s theory that paying foreigners may be a violation.
“Yes, they are in potential trouble,” von Spakovsky said.
“Foreign nationals are prohibited under 2 USC 441e from directly or indirectly making any kind of contribution, disbursement, expenditure or independent expenditure in our elections,” he said. “If you look at the FEC regulation on this,11 CFR 110.20, it explains this statute in great detail. If a campaign is involved in soliciting such participation, they are violating the law.”
Fusion GPS did not respond to a request for comment.
A person close to the Clinton campaign, however, pushed back forcefully on the idea that hiring foreigners would trigger a foreign contribution violation.
“This is a crazy stupid theory,” the person close to the Clinton campaign said.
“Under it Trump would have violated it by buying hats and t-shirts manufactured abroad,” they said.
Mitchell said she believes there’s a difference between merchandise and foreign opposition research, and that “the FEC regulations prohibit anyone from getting foreign nationals involved in a federal, state or local election, in a manner that causes them to make disbursements related to the election.”
Others doubt Mitchell’s legal interpretation, however, including Rick Hasen, a University of California at Irvine law professor and founder of the Election Law Blog.
“The law prohibits accepting contributions from foreigners or providing substantial assistance to foreigners in making independent expenditures,” Hasen said. “It does not prohibit paying foreigners at market value to perform services.”
Jan Baran, an attorney and election law expert at Wiley Rein LLP who has argued several cases before the Supreme Court, said he also knew of no law banning campaigns from hiring foreigners.
But Baran added that he believes the Clinton campaign could be in trouble for not accurately disclosing its payments to the law firm.
“The committees spent money to hire an opposition research firm,” he said. “However, there is no payment that describes having done so. The law requires such disclosure on reports filed with the FEC.”
Baran points to the Justice Department’s indictment this week of two campaign staffers for Rep. Bob Brady, D-Pa., for misreporting campaign payments allegedly used to pay off a competing candidate.
“Isn’t that what happened with the hiding of dossier expenses?” Baran asked.
An FEC complaint filed Wednesday by the Campaign Legal Center makes a similar case.
A second person close to the Clinton campaign, however, pointed to a 2013 FEC interpretation of reporting requirements for subcontractors as a defense, and said that the dossier work was accurately reported as legal services.
“Lawyers supervise research like this all the time,” the second person close to the Clinton campaign said. “This is clearly within the scope of legal services as defined throughout the private sector.”
