US. Department of Justice
Attorney—Wedt—llred-uet // May-Gentsm—Wefial—Pmteeted—UnderFed—R—Gfim—P—éée)

Tower Harm t0 Ongoing Matter +constituted prosecutable violations of
the campaign-finance laws. The Office determined that the evidence was not sufficient to charge
either incident as a criminal violation.

1:. Overview Of Governing Law

“[T]he United States has a compelling interest . . . in limiting the participation of foreign
citizens in activities of democratic self-government, and in thereby preventing foreign influence
over the US. political process.” Bluman v. FEC, 800 F. Supp. 2d 281, 288 (D.D.C. 2011)
(Kavanaugh, J., for three—judge court), aff’d, 565 US. 1 104 (2012). To that end, federal campaign-
finance law broadly prohibits foreign nationals from making contributions, donations,
expenditures, or other disbursements in connection with federal, state, or local candidate elections,
and prohibits anyone from soliciting, accepting, or receiving such contributions or donations. As
relevant here, foreign nationals may not makeiand no one may “solicit, accept, or receive” from
them—“a contribution or donation of money or other thing of value” or “an express or implied
promise to make a contribution or donation, in connection with a Federal, State, or local election.”
52 U.S.C. §30121(a)(1)(A), (a)(2).1283 The term “contribution,” which is used throughout the
campaign-finance law, “includes” “any gift, subscription, loan, advance, or deposit of money or
anything of value made by any person for the purpose of influencing any election for Federal
office.” 52 U.S.C. § 30101(8)(A)(i). It excludes, among other things, “the value of [volunteer]
services.” 52 U.S.C. § 30101(8)(B)(i).

Foreign nationals are also barred from making “an expenditure, independent expenditure,
or disbursement for an electioneering communication.” 52 U.S.C. § 30121(a)(1)(C). The term
“expenditure” “includes” “any purchase, payment, distribution, loan, advance, deposit, or gift of
money or anything of value, made by any person for the purpose of influencing any election for
Federal office.” 52 U.S.C. §r30101(9)(A)(i). It excludes, among other things, news stories and
non-partisan get-out-the-vote activities. 52 U.S.C. § 30101(9)(B)(i)—(ii). An “independent
expenditure” is an expenditure “expressly advocating the election or defeat of a clearly identified
candidate” and made independently of the campaign. 52 U.S.C. § 30101(17). An “electioneering
communication” is a broadcast communication that “refers to a clearly identified candidate for
Federal office” and is made within specified time periods and targeted at the relevant electorate.

52 U.S.C. § 30104(r)(3).

The statute defines “foreign national” by reference to FARA and the Immigration and
Nationality Act, with minor modification. 52 U.S.C. § 30121(b) (cross-referencing 22 U.S.C.
§611(b)(1)—(3) and 8 U.S.C. § 1101(a)(20), (22)). That definition yields five, sometimes-
overlapping categories of foreign nationals, which include all of the individuals and entities
relevant for present purposes—namely, foreign governments and political parties, individuals

1283 Campaign-finance law also places financial limits on contributions, 52 U.S.C. § 30116(a), and
prohibits contributions from corporations, banks, and labor unions, 52 U.S.C. § 30118(a); see Citizens
United v. FEC, 558 US. 310, 320 (2010). Because the conduct that the Office investigated involved
possible electoral activity by foreign nationals, the foreign-contributions ban is the most readily applicable


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outside of the U.S. who are not legal permanent residents, and certain non-U.S. entities located
outside of the U.S.

A “knowing[] and willful[]” violation involving an aggregate of $25,000 or more in a
calendar year is a felony. 52 U.S.C. § 30109(d)(l)(A)(i); see Bluman, 800 F. Supp. 2d at 292
(noting that a willful violation will require some “proof of the defendant’s knowledge of the law”);
United States v. Danielczyk, 917 F. Supp, 2d 573, 577 (ED. Va. 2013) (applying willfulness
standard drawn from Bryan v. United States, 524 U.S. 184, 191-92 (1998)); see also Wagner v.
FEC, 793 F.3d 1, l9 n.23 (DC. Cir. 2015) (en banc) (same). A “knowing[] and willful[]” violation
involving an aggregate of $2,000 or more in a calendar year, but less than $25,000, is a
misdemeanor. 52 U.S.C. § 30109(d)(1)(A)(ii).

b. Application to June 9 Trump Tower Meeting

The Office considered whether to charge Trump Campaign officials with crimes in
connection with the June 9 meeting described in Volume 1, Section IV.A.5, supra. The Office
concluded that, in light of the government’s substantial burden of proof on issues of intent
(“knowing” and “willful”), and the difficulty of establishing the value of the offered information,
criminal charges would not meet the Justice Manual standard that “the admissible evidence will
probably be sufficient to obtain and sustain a conviction.” Justice Manual § 9-27.220.

In brief, the key facts are that, on June 3, 2016, Robert Goldstone emailed Donald Trump
Jr., to pass along from Emin and Aras Agalarov an “offer” from Russia’s “Crown prosecutor” to
“the Trump campaign” of “official documents and information that would incriminate Hillary and
her dealings with Russia and would be very useful to [Trump Jr’s] father.” The email described
this as “very high level and sensitive information” that is “part of Russia and its government’s
support to Mr. Trump-helped along by Aras and Emin.” Trump Jr. responded: “if it’s what you
say I love it especially later in the summer.” Trump Jr. and Emin Agalarov had follow-up
conversations and, within days, scheduled a meeting with Russian representatives that was
attended by Trump Jr., Manafort, and Kushner. The communications setting up the meeting and
the attendance by high-level Campaign representatives support an inference that the Campaign
anticipated receiving derogatory documents and information from official Russian sources that
could assist candidate Trump’s electoral prospects.

This series of events could implicate the federal election-law ban on contributions and
donations by foreign nationals, 52 U.S.C. § 3012l(a)(l)(A). Specifically, Goldstone passed along
an offer purportedly from a Russian government official to provide “official documents and
information” to the Trump Campaign for the purposes of influencing the presidential election.
Trump Jr. appears to have accepted that offer and to have arranged a meeting to receive those
materials. Documentary evidence in the form of email chains supports the inference that Kushner
and Manafort were aware of that purpose and attended the June 9 meeting anticipating the receipt
of helpful information to the Campaign from Russian sources.

The Office considered whether this evidence would establish a conspiracy to violate the

foreign contributions ban, in violation of 18 U.S.C. § 371; the solicitation of an illegal foreign-
source contribution; or the acceptance or receipt of “an express or implied promise to make a


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[foreign-source] contribution,” both in violation of 52 U.S.C. § 30121(a)(l)(A), (a)(2). There are
reasonable arguments that the offered information would constitute a “thing of value” within the
meaning of these provisions, but the Office determined that the government would not be likely to
obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible
evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these
individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and,
second, the government would likely encounter difficulty in proving beyond a reasonable doubt
that the Value of the promised information exceeded the threshold for a criminal violation, see 52

U.S.C. § 30109(d)(1)(A)(i),
i. Thing-of-Value Element

A threshold legal question is Whether providing to a campaign “documents and
information” of the type involved here would constitute a prohibited campaign contribution. The
foreign contribution ban is not limited to contributions of money. It expressly prohibits “a
contribution or donation of money or other thing of value.” 52 U.S.C. § 30121(a)(1)(A), (a)(2)
(emphasis added). And the term “contribution” is defined throughout the campaign-finance laws
to “include[]” “any gift, subscription, loan, advance, or deposit of money or anything of value.”
52 U.S.C. § 30101(8)(A)(i) (emphasis added).

The phrases “thing of value” and “anything of value” are broad and inclusive enough to
encompass at least some forms of valuable information. Throughout the United States Code, these
phrases serve as “term[s] of art” that are construed “broad[ly].” United States v. Nilsen, 967 F.2d
539, 542 (1 1th Cir. 1992) (per curiam) (“thing of value” includes “both tangibles and intangibles”);
see also, e.g., 18 U.S.C. §§ 201(b)(l), 666(a)(2) (bribery statutes); id § 641 (theft of government
property). For example, the term “thing of value” encompasses law enforcement reports that
would reveal the identity of informants, United States v. Girara’, 601 F.2d 69, 71 (2d Cir. 1979);
classified materials, United States v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991); confidential
information about a competitive bid, United States v. Matzkin, 14 F.3d 1014, 1020 (4th Cir. 1994);
secret grand jury information, United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985); and
information about a witness’s whereabouts, United States v. Sheker, 618 F .2d 607, 609 (9th Cir.
1980) (per curiam). And in the public corruption context, “‘thing of value’ is defined broadly to
include the value which the defendant subjectively attaches to the items received.” United States
v. Renzi, 769 F.3d 731, 744 (9th Cir. 2014) (internal quotation marks omitted).

Federal Election Commission (FEC) regulations recognize the value to a campaign of at
least some forms of information, stating that the term “anything of value” includes “the provision
of any goods or services without charge,” such as “membership lists” and “mailing lists.” 11
C.F.R. § 100.52(d)(1). The FEC has concluded that the phrase includes a state-by—state list of
activists. See Citizens for Responsibility and Ethics in Washington v. FEC, 475 F.3d 337, 338
(DC. Cir. 2007) (describing the FEC’s findings). Likewise, polling data provided to a campaign
constitutes a “contribution.” FEC Advisory Opinion 1990-12 (Strub), 1990 WL 153454 (citing 11
C.F.R. § 106.4(b)). And in the specific context of the foreign-contributions ban, the FEC has
concluded that “election materials used in previous Canadian campaigns,” including “flyers,
advertisements, door hangers, tri-folds, signs, and other printed material,” constitute “anything of


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