The impeachment inquiry into President Trump’s July 25 phone call could hinge on whether or not his request to have Ukraine investigate Joe Biden amounts to a campaign finance violation.
Speaker of the House Nancy Pelosi has said the president is “not above the law,” while the White House has refused to comply with what it calls “baseless, unconstitutional efforts to overturn the democratic process.”
Despite conflicting signals coming from Washington, the question remains: Did President Trump violate campaign finance laws by asking the Ukraine president to investigate Joe Biden?
Campaign finance expert Trevor Potter, who is president of the nonpartisan Campaign Legal Center, says the answer is clear — yes, he did.
Campaign finance law states: “It shall be unlawful for a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”
Potter says the president’s call violates this rule and serves as a “classic case” of a candidate illegally requesting help from a foreign government.
“The president, who is a candidate and has a campaign, asked a foreign government — which is included in the definition of a foreign national — for a favor, for help in a way that would benefit his campaign, harm his opponent,” he says. “And that would fit within the ban on soliciting foreign national contributions or taking anything of value.”
An investigation into Joe Biden conducted by the Ukrainian government qualifies as a “thing of value” contributed by a foreign entity, he says.
However, the Department of Justice decided not to open a criminal investigation into the matter because it determined that urging the Ukranian president to investigate Biden did not count as a “thing of value.”
Potter says the DOJ would need to put a dollar amount on how much this “thing of value” is worth to determine whether the offense would be classified as a misdemeanor or felony crime, and that’s not easy.
“It looks as if the Justice Department simply didn’t want to get into valuing it and said, ‘Since we don’t know how to value it, we’re going to say this is not met,’” says Potter, a Republican former chair and member of the Federal Election Commission.
The DOJ faces another complication regarding this call — its long-time policy that states a president cannot be charged with a criminal violation while in office.
But this doesn’t mean a president can’t be criminally investigated or charged once they’re out of office, Potter says. Plus, the FEC has its own responsibility to ensure these laws are upheld.
If the DOJ referred the whistleblower complaint to the FEC, the commission could investigate the call as a civil violation, but he says the DOJ hasn’t done so.
“If they [DOJ] are determining there is no campaign finance violation based on the idea that they can’t value the ‘thing of value’ that was requested, then they wouldn’t refer it to the FEC because they would have had this fundamental view that the law wasn’t broken here,” he says, “which I think is wrong.”
The underlying problem here, Potter says, is that Congress created the FEC to deal with campaign finance law violations rather than criminalizing them.
The FEC is “very ineffective” at dealing with finance violations, he says. Right now, the FEC can’t vote on proposed actions because the agency needs four sitting commissioners to vote and the fourth resigned in August.
“Now, they [FEC] actually legally cannot do anything,” he says. “All of that raises, I think, the likelihood that someone will do something they know is impermissible on the basis that they’re not going to be fined, found out.”
This article was originally published on WBUR.org.