Why it’s Wrong to Conspire with a Foreign Power to Win an Election

Topline takeaways:
● Trump and his allies have moved from “we had no contacts with Russians” to “we didn’t
collude with Russians” to “collusion isn’t a crime.” The third variation is no more true
than the first.
● Whether you call it “collusion,” “conspiracy,” or by some other name, working with a
foreign government to influence a federal election is a crime.
● Laws prohibiting foreign interference protect popular sovereignty--the right of the people
to self-government.
● A foreign power gaining influence over the American government compromises this
sovereignty by undermining our basic ability to choose our own leaders.
● Foreign governments don’t get to control our political process. The Russian government
has no First Amendments rights that would protect its contributions to the Trump
campaign. And the U.S. government has a compelling interest--even a duty--to protect
democratic self-rule against foreign influence.
● We can, do, and should disagree about political candidates and policy decisions in this
country, but we cannot disagree about who gets to choose among them. The American
people, not foreign governments, make those decisions.

Trump is Moving the Goalposts

President Trump and his legal team have been floating the argument that it’s both legal
and proper for a presidential candidate to conspire with a foreign adversary to influence our
elections. Rudy Giuliani kicked off his TV appearances this week on Fox & Friends with the

1
claim that ​“collusion is not a crime.”​ On Wednesday, Trump repeated this line in a tweet
(“​Collusion is not a crime​”). Both men are echoing an argument from another Trump Campaign
lawyer who, in June, told a federal judge that conspiring with Russian agents to “releas[e]
information” about the DNC and “influence voters against Hillary Clinton” was “all quite legal.”
Cockrum et al. v. Donald J. Trump for President, Inc., et al.,​ 1:17-cv-01370-ESH, Docket No.
70, Tr. 44:23-45:06, (D.D.C. 2018).

This is a desperate effort to move the goalposts on what is considered acceptable political
behavior--both to suggest the Special Counsel must find more than “collusion” if we are to care
and an attempt to shield the President against whatever evidence emerges that he solicited or
accepted the aid of a hostile foreign power in the 2016 election. It is wrong on the law and
deeply offensive to the most basic American value of democratic self-government.

The great American experiment in democracy requires that we maintain our sovereignty.
Sovereignty is the idea that we the people have given the full right and power of governance to a
government we choose--without interference from outside sources or bodies. If a foreign power
holds sway over our leaders, if candidates can solicit foreign aid to win political office at home,
that sovereignty is drastically reduced. If Special Counsel Mueller issues a report or indictments
showing that then-candidate Trump or the Trump campaign worked with Russian government
agents to influence the election, that would be a serious breach that would make it untenable for
the President to remain in office. Deep political divisions will persist, but on this point we must
agree and leave no room for doubt: it is entirely unlawful and un-American for any future
candidates or campaigns to conspire with a foreign adversary to win an election.

I. It is a crime for a campaign to work with a foreign power to influence a federal

election.

Under the Federal Election Campaign Act, it is illegal for foreign nationals to contribute
to or donate something of value in connection with a U.S. election, and for U.S. campaigns to
coordinate with foreign nationals. ​52 U.S.C. § 30121.​ Campaigns pay a lot of money for
opposition research (or ​“dirt”​) and ​social media advertising​--there’s no question that these are
“things of value” covered by the FECA. And the prohibition on accepting a “thing of value”

2
from foreign sources has always had bipartisan support. On the books since 1966, Congress has
strengthened the law several times. After hearings on alleged abuses by the Clinton-Gore
presidential campaign in 1996--including campaign contributions from foreign nationals--and
publication of a ​10,000-page report​, Congress passed bipartisan legislation strengthening these
restrictions. President Bush signed the ​Bipartisan Campaign Reform Act​ into law in 2002.
Explaining his support for the embargo on donations from foreign sources, Senator Lloyd
Bentsen, author of the core prohibition still in place today, argued that foreigners had no
“business in our political campaigns. . . . Their loyalties lie elsewhere; they lie with their own
countries and their own governments.” ​120 CONG. REC. 8783 (1974)​.

Federal criminal law further prohibits any conspiracy to interfere with or obstruct a
lawful government function--like running our elections. ​18 U.S.C. § 371​. There’s no more
important function of the United States than ensuring that the American people can select our
representatives in government. Americans throughout history have fought and died to have this
right. The history of enforcement of this conspiracy statute reflects its importance. Special
Counsel Robert Mueller has ​indicted 16 Russians and Russian entities​ on charges that they
conspired to defraud the United States in their efforts to throw the 2016 presidential election to
Trump. And in 1998, DOJ extracted a ​guilty plea​ to charges under the same statute from Johnny
Chung, one of the key figures in the 1996 campaign finance scandal that inspired Congress to
strengthen federal election law in 2002.

In addition, hacking into the accounts of campaigns or campaign staff violates the
Computer Fraud and and Abuse Act. ​18 U.S.C. ​§​ 1030(a)(2)​. If the Trump campaign worked
with with those who hacked campaign accounts, it could be an illegal conspiracy, or the
campaign could be guilty under an ​aiding and abetting​ theory. And if they received the stolen
information, that would be a ​crime​ distinct from the act of hacking--just as accepting a watch
you know is stolen is a crime distinct from stealing it.

In addition, the ​Foreign Agents Registration Act​ requires those working on behalf of a
foreign power in a political capacity to disclose those relationships so that our government and
the people know what role the foreign power is playing. The Justice Department has already
charged the Trump campaign chairman, ​Paul Manafort​, and his deputy, ​Richard Gates​, for
violating these laws.

3
 In fact, as many experts have explained in the last few days (for example, ​here​ and ​here​),
the list of potential illicit acts encompassed in the Trump campaign’s “collusion” is very, very
long. Congress passed each of these laws. They were all signed by a President and inked in the
U.S. Code. Neither Trump nor his campaign is at liberty to ignore them. The President is not
above the law.

II. These laws are not just technicalities: p​ rohibiting foreign interference in our elections
safeguards the basic notion of American sovereignty.

If there is one constant throughout American history, it is that “we the people” get to
choose how we are governed. The ​Declaration of Independence​ proclaimed “[t]hat these united
Colonies are, and of Right ought to be Free and Independent States . . . and that as Free and
Independent States, they have full Power . . . to do all other Acts and Things which Independent
States may of right do.” And the Founders were especially fearful of foreign interference in
American popular sovereignty. (That’s the point of the once-obscure Emoluments Clause.)
“History and experience prove,” ​warned Washington​, “that foreign influence is one of the most
baneful foes of a republican government.” ​Hamilton described​ foreign influence in politics as a
“Grecian horse” and cautioned that “[w]e cannot be too careful to exclude its entrance.”

In the 20th Century, Presidents Kennedy and Reagan framed popular sovereignty as the
most elemental distinction between America and the Soviet Union. The “Communist Empire,”
said Kennedy​, “lives under governments installed by foreign troops instead of free institutions.”
And the idea of America--​as Reagan described it​, the belief “that government is beholden to the
people, that it has no other source of power except to sovereign people”--was our most potent
weapon against the totalitarianism creeping outward from Moscow. Our sovereignty is the most
basic guarantor of our constitutional rights. Compromising it for the sake of a short-term
political victory is completely unacceptable.

III. That a President who claims to put America first would argue that it’s acceptable to turn
over our sovereignty to a foreign adversary makes no sense.

4
 If anything counts as putting America first, it’s ensuring the American people get to
decide the direction of our country. President Trump’s very first foreign policy speech as
President made sovereignty its central pillar. In his short ​address​ to the U.N. General Assembly,
he used the phrases “sovereign” or “sovereignty” 21 times. Echoing Reagan, he claimed that
“[i]n America, the people govern, the people rule, and the people are sovereign.” The “people”
he referenced should not include agents of a hostile foreign power.​ The president also makes
frequent reference to borders and their relation to our sovereignty, ​arguing that​ “a nation without
borders is not a nation.” But what do those physical borders mean if we allow people outside of
them to interfere in our elections?

Conceding to foreign nations the ability to put leaders friendly to them in power is far
more dangerous to our sovereignty than any issue of border security. Let’s not be naive: if a
foreign power can change the outcome of our elections, it can control our government. A foreign
power doesn’t spend substantial resources and risk diplomatic consequences to interfere in our
elections without the realistic prospect of a reward. They want geopolitical advantages for their
own country and influence over policy outcomes in ours, whether through helping select who our
leaders are or by gaining some measure of control over those leaders. While we should cherish
robust political debate about how to exercise democratic self-government, that debate and its
outcomes should be determined by members of the American political community, not foreign
governments.

And as Trump and his allies roll from denial to excuse to absolution, we must remember
that interference in our elections is nowhere near acceptable political behavior, whether it’s
through secret contributions of cash to a campaign, bribes to a candidate, hacking the campaign
of an opponent, or hacking election machinery. Whatever the means, this is a foreign power
getting to decide who wins our elections and then who governs us--this sovereign nation.

IV. Conspiring with a foreign power to tilt an election is ​not​ protected by the First Amendment

The Russian government doesn’t have First Amendment rights. And the courts have
been clear that it’s perfectly permissible for Congress to prohibit U.S. campaigns from
coordinating with a foreign power to influence an election. (Remember Justice Alito’s
response--“​not true​”--to the suggestion that ​Citizens United s​ aid otherwise?) D.C. Circuit Judge

5
Kavanaugh explained that this is so because, quoting the Supreme Court, it is a “necessary
consequence” of democratic self-government. ​Bluman v. Federal Election Commission,​ 800
F.Supp.2d 281, 287 (D.D.C. 2011). The U.S. government has a compelling--and in lay terms,
obvious--interest in “preventing foreign influence of the U.S. political process.” ​Id. a​ t 288. For
that reason, courts have had no problem upholding Congress’s laws that prevent foreign
contributions--financial or otherwise--to federal political campaigns and the campaigns’ ability
to invite or accept them.

And, of course, First Amendment rights aren’t absolute. Shouting fire in a crowded
theater, inciting violence, and foreign subversion of democratic self-rule are the sorts of speech
the government has a compelling interest in restricting, and the Supreme Court has repeatedly
affirmed its ability to do so.

***********

There is room for disagreement in American politics. We will never fully agree on policy,
but we should unanimously uphold the principle that the American people alone get to decide
who governs us. We cannot allow foreign dictators or overseas powers of any kind to decide
American laws and make decisions for the American people. It is completely unacceptable,
inappropriate, and illegal for an American political campaign to help or conspire with a foreign
adversary to win an election.