Tit-for-tat is the worst instinct in politics. Bad law begets worse law. Our worst vindictive instincts can undermine our most cherished liberties.
That’s what I had to tell myself, more than once, in reading the Mueller report’s analysis of the closest thing to “Trump-Russia collusion” in the 2016 campaign — the now-infamous Trump Tower meeting of June 9, 2016. Because if special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE is right, then there ought to be another withering two-year investigation, tout de suite, of the Hillary ClintonHillary Diane Rodham ClintonTrump defends indicted GOP congressman GOP lawmaker says he expects to be indicted over FBI investigation Why it's time for conservatives to accept the 2020 election results and move on MORE campaign’s far worse election-law violations.
According to Mueller, the derogatory information about Hillary Clinton at issue in the Trump Tower meeting could have been an illegal in-kind foreign contribution to a political campaign. The prosecutor, however, declined to charge it out of an abundance of caution and magnanimity. To be sure, Trump Tower was amateur hour. By contrast, the Clinton campaign did not merely accept a dubious Russian offer of help; it actively solicited derogatory Trump information from foreign sources, then channeled this “opposition research” into government intelligence channels — with a resulting disinformation coup for Moscow.
But while the Clinton effort merits a searching investigation to find out what caused our $50 billion per annum intelligence community to be taken for a ride, it does not merit federal prosecution for campaign-finance violations. That would be ridiculous — as it was even more ridiculous to investigate Don Trump Jr. on this loopy theory.
Mueller’s assessment of the Trump Tower hijinks smacks of the envelope-pushing zeal that marked an investigation driven by progressive legal beagles, who believe the law is there to empower subordinate executive bureaucrats, such as themselves, to neuter the chief executive (at least if his name is Donald TrumpDonald TrumpTrump defends indicted GOP congressman House to vote Thursday on holding Bannon in contempt Youngkin calls for investigation into Loudoun County School Board amid sexual assault allegations MORE). And never have they seen a constitutional right (i.e., a freedom from government intrusion) that could not and should not be subject to government intrusion.
I’m sure it was a thrill for them, putting felony teeth in such moribund provisions as the Foreign Agents Registration Act, which had nearly never been invoked in the half-century before Mueller turned it into a crime wave. And what a power surge to take the ever-elastic federal conspiracy statute (Section 371, punishing agreements to commit crimes Congress has defined) and stretch it into a vague new offense, “Conspiracy against the United States” — by which prosecutors can criminalize conduct Congress has not outlawed.
The Trump Tower meeting was a pointless dud. Yet, Mueller investigated it as a crime.
The report rehearses the facts (pp. 110-20). Through a publicist intermediary, a Kremlin-connected Russian oligarch, Aras Agalarov, reached out to Don Jr. offering what was hyped as devastatingly information that would incriminate Hillary Clinton. The offer was said to reflect the Putin regime’s support for Trump’s candidacy. Don Jr. anxiously accepted the offer. A Kremlin-tied lawyer, Natalia Veselnitskaya, was promptly dispatched from Moscow to Trump Tower where, along with her retinue, she was given a meeting with Trump Jr., along with two other top campaign officials (then-chairman Paul ManafortPaul John ManafortFBI agents swarm Russian oligarch's DC home DOJ investigating one-time Trump campaign adviser over alleged ties to Qatar: report Foreign lobbyists donated over M during 2020 election: report MORE and Jared KushnerJared Corey KushnerHillicon Valley — Presented by LookingGlass — Hackers are making big money Kushner associate pardoned by Trump in plea discussions over cyberstalking charges Biden has an opportunity to put his own stamp on Arab-Israeli relations MORE, the now-president’s son-in-law).
The promised information turned out to be useless: claims that financial backers of the Democratic Party made money from crimes in Russia. After her presentation predictably fizzled, Veselnitskaya proceeded to her real agenda: using the meeting to lobby the Trump campaign against the Magnitisky Act — a bane of Vladimir PutinVladimir Vladimirovich PutinFBI agents swarm Russian oligarch's DC home Netanyahu told Putin he would be 'back soon' after election: report Russia records another daily record of deaths as COVID-19 continues surge MORE’s existence that allows Russian assets to be frozen in retaliation for the torture-murder of an investigator who uncovered a massive financial fraud orchestrated by the regime. Trump Jr. curtly cut off that conversation. The whole futile exercise took 20 minutes — enough to give Putin a card to play on Trump (if you meet with the Kremlin, you’re at the Kremlin’s mercy when Russia decides to spin what the meeting was about), but not for much else.
Not so fast, say Mueller’s prosecutors. Opposition research is a “thing of value” under the campaign finance laws. The fact that it was neither money nor hard assets, but just information, does not prevent Congress and the Federal Election Commission (FEC) from making its exchange a felony.
Mueller ultimately decided not to charge it because of what he conceded was the challenge of proving intent on the facts of the case: Because campaign violations are not inherently criminal, prosecutors must prove defendants acted willfully — i.e., they were aware their actions were illegal. There was no indication that the participants in the meeting realized they might be running afoul of campaign finance law. Moreover, the special counsel also acknowledged that the First Amendment complicated things — you know, that whole freedom of speech thing.
So, while prosecutors decided not to charge a felony in this case, they indicated that similar cases could be charged. Yet the issues of intent and constitutionality cited by Mueller are exactly why it is absurd to conceive of any information exchanges — particularly in the context of political speech, the core of First Amendment liberty — as criminal.
Why would Americans ever believe they were violating the law by just discussing facts or opinions about candidates for public office, even if the discussions and exchanges of information are with non-Americans? The First Amendment says “Congress shall make no law … abridging the freedom of speech.” It does not merely guarantee Americans freedom to express themselves; it denies Congress the power to limit anyone’s protected speech.
Consider the Clinton campaign. Through intermediaries, it retained a British former intelligence officer to collect campaign dirt for use against Trump from Russian sources — including Kremlin operatives (collusion!). The information — anonymous, uncorroborated hearsay, much of which appears to be bogus — was injected into our government’s foreign intelligence databank through the FBI, the Justice Department, and the State Department (and I believe, when the dust finally settles, we will learn that other intelligence agencies had a hand in the debacle). In addition, there is evidence that the campaign colluded with Ukrainian government officials to obtain information that would damage Trump’s campaign — particularly, corrupt payments Kiev’s former ruling party made to Manafort.
Unlike the Trump people, the Clinton campaign knew full well that the information was a “thing of value” because a lot of money — over a million dollars — was paid to get it. Furthermore, the Clinton team was composed of campaign veterans who were well aware of the FEC regulations, and who knew they were dealing with foreigners.
Tit-for-tat, right? If the Trump campaign was investigated for campaign finance violations, surely it’s time to squeeze the Clinton campaign, right?
Wrong. Resist the urge. The way to combat information is with better information, and there is no place in a functioning democratic republic, committed to the free exchange of ideas, for the banning of true information, regardless of the source.
If 2016 has taught us anything, it is that we should invite the FBI and federal prosecutors to have as little to do with our political campaigns as possible. Their involvement politicizes law enforcement and inhibits democracy.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor.