A controversy has recently erupted over a June 2016 meeting between some members of the Trump campaign team, including the President’s son, Donald Trump Jr., and at least one Russian citizen. The Trump campaign’s version of events has shifted several times, and new details continue to emerge. However, it appears that Trump Jr.’s desire to obtain compromising information about Hillary Clinton from the Russian citizen motivated his acceptance of the meeting. (What actually happened during the meeting remains a source of uncertainty.)
This controversy has given rise to the predictable barrage of political commentary and speculation over whether any criminal prosecutions will follow from the meeting. Most legal commentary has focused on whether Trump Jr. violated a provision of the Federal Election Campaign Act (FECA), 52 U.S.C. 30121(a)(2), which prohibits any person from soliciting a contribution or donation from a foreign national (as defined). Scholars have debated whether that statute, properly interpreted, reaches Trump Jr.’s conduct. Scholars have also debated whether, even if Trump Jr.’s conduct comes within the statute, the statute would be constitutional. But these debates over the statute’s meaning and its constitutionality have missed a major, likely determinative issue: Whatever FECA might mean, did Trump Jr. need to deliberately violate it in order to face a criminal prosecution?*
Usually, ignorance of the law is no defense to prosecution. A statute that criminalized, for example, the “willful killing of another with malice aforethought” would apply to someone who, with the requisite intent, killed another person, regardless of whether he was aware of the statute. That is, the statute would be concerned with whether the person “willfully” performed the act of killing, not whether he “willfully” decided to violate the law.**
But FECA, according to the United States Department of Justice, operates differently. Most of FECA’s prohibitions, including those related to contributions/donations from foreign nationals, create criminal consequences only when a person “knowingly and willfully” commits a violation of the statute.*** See 52 U.S.C. 30109(d)(1)(A). And according to the DOJ’s standards, which may differ from the case law’s (more on that later), this heightened mens rea standard means that a person must know that he is breaking the law to trigger a criminal prosecution, and must know about the relevant statutory duty: The “words [‘knowingly and willingly’] of specific criminal intent require proof that the offender was aware of what the law required, and that he or she violated that law notwithstanding that knowledge, i.e., that the offender acted in conscious disregard of a known statutory duty or prohibition.” U.S. DOJ, Federal Prosecution of Election Offenses, p.135 (7th Ed.) (2007) (DOJ Manual). By the DOJ’s standards, if a defendant is unaware of FECA, she cannot commit a criminal violation of the statute. See id. at 14 (“FECA violations become potential crimes when they are committed knowingly and willfully, that is, by an offender who knew what the law forbade and violated it notwithstanding that knowledge.”). Even if she negligently ignores the law or mistakes its requirements, no prosecution can properly follow. See id. at 4. Instead, civil enforcement will correct any violations. See id. See also 52 U.S.C. 30109(a) (describing, among other things, civil enforcement procedures); 11 C.F.R. 110.20(g) (“knowingly” standard applies for civil violations of 52 U.S.C. 30121(a)(2)); 11 C.F.R. 110.20(a)(4) (defining “knowingly” as referring to knowledge of the facts, rather than knowledge of the law); Rick Hasen, Election Law Blog (“Trump Jr. can still be civilly liable, even if he’s too ignorant to be criminally liable.”).
Trump Jr.’s familiarity with the law presents a question of fact, impossible to resolve in a blog post. However, speaking from a purely legal perspective, it is safe to say that where ignorance of the law is a defense to a crime, prosecutors face significant challenges in securing a conviction. Additionally, where, as here, the actual meaning of the law is not clear, as suggested by scholarly debates, prosecutions may be especially unlikely. See DOJ Manual at 145 (FECA’s criminal provisions are often of “little concern to federal prosecutors and investigators . . . because they concern issues that are subject to evolving regulation when the application of the law to the facts is not entirely clear”); DOJ Manual at 151 (“[A]ny situation when the application of the law to the facts is unclear does not easily produce a prosecutable FECA crime.”). Cf. also United States v. Critzer, 498 F.2d 1160, 1163 (4th Cir.1974) (“Even if [the defendant] had consulted the law and sought to guide herself accordingly, she could have had no certainty as to what the law required,” such that “the element of willfulness could not be proven”) (federal tax case).
Also, although the DOJ Manual does not create binding law, it will likely control any prosecution decisions by the DOJ, including by Special Counsel Robert Mueller. Under 28 C.F.R. 600.7(a) & (d), the Special Counsel must comply with all “rules, regulations, procedures, practices and policies of the Department of Justice” and may be removed for “a violation of Departmental policies.” The DOJ Manual, which is published by the DOJ’s Public Integrity section, states that it describes the Department’s practices and policies. See DOJ Manual at 1 (This manual “addresses how the Department handles all federal election offenses . . .[It] summarizes the Department’s policies, as well as key legal and investigative considerations, related to the investigation and prosecution of election offenses.”). See also U.S. Attorney’s Manual § 9-85.210 (U.S. Attorneys must consult with the Public Integrity Section on criminal matters related to campaign finance violations, including those arising under FECA); United States v. Hemmingson, 157 F.3d 347, 362 (5th Cir. 1998) (relying on DOJ Manual (6th Ed.) as evidence of “typical” prosecution practices).
Even if the DOJ Manual were withdrawn (not likely), a potential defendant, like Trump Jr., could identify judicial pronouncements that independently establish a high barrier to conviction under FECA. In Fed. Election Comm’n v. Friends of Jane Harman, for example, the court stated that when FECA refers to a “‘knowing’ standard, as opposed to a ‘knowing and willful’ one,” the statute “does not require knowledge that one is violating a law, but merely requires an intent to act.” 59 F. Supp. 2d 1046, *1056 n.11 (C.D. Cal. 1999). In other words, a “knowing and willful” standard, like the one in the FECA criminal provision relevant here, “require[s] knowledge of the illegality of the conduct at issue.” See id. Also, in Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 292 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012), the court, in dicta, concluded that establishing criminal penalties for FECA violations “require[s] proof of the defendant’s knowledge of the law,” and the court strongly implied that the absence of knowledge of specific provisions would defeat a prosecution. See id. at 292 (“There are many aliens in this country who no doubt are unaware of the [FECA] ban on foreign expenditures, in particular.”). This is consistent with AFL-CIO v. Federal Election Commission, 628 F.2d 97, 101 (D.C. Cir. 1980), which determined that a “knowing and willful” violation of a FECA civil penalty provision required “knowing, conscious, and deliberate flaunting” of the statute. (Presumably, a defendant could not “flaunt” a statute whose requirements she was unfamiliar with.)
However, in a case affirmed by the Ninth Circuit, a district court held that an intent to violate the law generally, without intent regarding a specific FECA provision, suffices. See United States v. Whittemore, 944 F. Supp. 2d 1003, 1007 (D. Nev. 2013), aff’d, 776 F.3d 1074 (9th Cir. 2015) (“‘willfully’ in this [FECA] statute means that the ‘[g]overnment must prove that [the defendant] intended to violate the law (whatever the law was); but it need not prove awareness of the specific law’s commands’”) (citations omitted). See also United States v. Danielczyk, 788 F.Supp.2d 472, 491 (E.D. Va. 2011) (establishing the approach on which Whittemore was based), rev’d on other grounds, without discussion of mens rea issues, 683 F.3d 611 (4th Cir. 2012). Thus, even if the DOJ Manual were not followed, then, in jurisdictions following the Whittemore standard, prosecutors would have to prove, at a minimum, that the defendant intended to violate the law, though they would not need to show that she was aware of FECA’s specific provisions.
In any event, given the unusually strict standards for prosecution under FECA, whether determined under the DOJ Manual or under the case law, and given the currently available facts, it seems highly unlikely that Trump Jr. will face any criminal consequences under that statute. Of course, whether any action is, or is not, criminal does not establish the morality or ethics of that action. Nor does the absence of criminality under FECA prove or disprove whether the Trump campaign coordinated with Russia regarding the hacking of the Democratic National Committee. Also, the June 2016 meeting may raise legal problems aside from those under FECA. Nonetheless, the relevance of a FECA prosecution to Trump Jr. has likely been greatly overstated in current public debates. Going forward, commentators should take into account FECA’s mens rea standards before alleging a criminal campaign finance law violation.
Follow me on Twitter: @AndyGrewal
(UPDATE: For further developments, see my May 3, 2018 post, “The DOJ Quietly Made Campaign Finance Violations Easier to Prosecute.”)
*This post was updated to emphasize that a violation of 52 U.S.C. 30201 may trigger civil enforcement, even if the standards for criminal prosecutions under 52 U.S.C. 30109(d) have not been satisfied. I thank Professors Marty Lederman and Rick Hasen for encouraging me to clarify that point.
** This is not to say that “willful” has a clear, single meaning in the law. See, e.g., United States v. Kay, 513 F.3d 432, 447 (5th Cir. 2007) (noting that the “definition of ‘willful’ in the criminal context remains unclear despite numerous opinions addressing this issue” and that “[t]hree levels of interpretation have arisen that help to clear up the haze”).
*** The relevant statute refers to criminal consequences for “[a]ny person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure.” 52 U.S.C. 30109(d)(1)(A) (emphasis supplied). If the italicized language modifies “violation,” then merely soliciting a contribution, without subsequently “receiving” a contribution, could not be criminalized. However, if the italicized language modifies “provision of this Act,” then a solicitation alone could be criminalized, since 52 U.S.C. 30121(a)(2) is a provision that involves, among other things, “receiving” a contribution from a foreign national. This latter construction seems more natural. And if the latter construction were rejected, it would imply that a flat refusal to satisfy a reporting requirement could not be criminalized since, if a person reported nothing, there could be no violation which involved the “reporting of any contribution.”
This post will be occasionally updated. Last updated on 8/8/18.