Continuing its troubling pattern of seeking to protect President Trump instead of properly doing its job, the Department of Justice (DOJ) announced recently that when it saw the transcript of Trump’s infamous July 25 call with the president of Ukraine, it decided not to investigate possible campaign finance violations by Trump. Why? Because, DOJ claimed, it concluded that asking a foreign national to “dig up dirt” on a political opponent, as Trump clearly did, is not a crime because the precise value of such opposition research work cannot be quantified, and it was thus not illegal for Trump to solicit Ukraine to do it. In apparent reliance on that assertion, some Republicans are claiming that what Trump did was not illegal and he cannot be impeached for it.
This DOJ effort, however, is unavailing and dangerous. Even assuming this was the real reason DOJ did nothing about Trump’s conduct, it is clear that soliciting opposition research by a foreign nation is an attempt to obtain a “thing of value” under federal law and is thus a crime. And even if it technically is not, Trump’s shameful conduct is still an impeachable offense, as suggested by members of both parties.
Under federal election law, it is illegal for someone to solicit a “thing of value” in connection with a federal election or for a foreign national to provide it. Candidates often spend or pay a lot for opposition research, and the Federal Election Commission, its chair Ellen Weintraub, and election law experts all agree that such research is a “thing of value” that is illegal to solicit or accept from a foreign source. Election law expert Rick Hasen called the DOJ’s quantification excuse “laughable;” at least as long as the value of such opposition research meets the contribution legal threshold of $2800, which it clearly does, it is clear that “a prosecutor could go forward” with such a case.
Putting impeachment aside, consider the harmful effects of the DOJ claim on foreign interference in our elections. If it is legal to solicit opposition research from foreign sources, it is just as legal for foreign countries to provide it. Does that mean that DOJ has now revoked FBI Director Chris Wray’s warning that any candidate approached by a foreign power on such matters should contact the FBI rather than simply accepting what is offered, a warning that Trump has already claimed is “wrong” ? DOJ’s new view will certainly encourage Trump to believe that he can accept any dirt dug up by the Russians during the 2020 campaign, despite the criticism by members of both parties when he publicly stated earlier this year that he would consider doing so.
With respect to grounds for impeachment, it is the House that decides that question, not Trump’s DOJ. Even if a court agreed with DOJ’s view, Prof. Hasen pointed out, it is still clearly “within Congress’ power to impeach and remove by viewing this as an abuse of power” by the President. Former Republican Senator William Cohen, who voted for Nixon’s impeachment in 1974, recently commented that Trump’s effort to “solicit interference” by Ukraine in our elections would be an “impeachable offense” on precisely such abuse of power grounds. In fact, when he was prosecuting President Clinton after impeachment in 1999, now-Senator Lindsey Graham stated that “you don’t have to be convicted of a crime” to be impeached and removed from office. Instead, he told the Senate, impeachment is “about cleansing the office” and “restoring honor and integrity,” and a president can be impeached and removed if Congress decides that his “conduct as a public official is clearly out of bounds” – precisely the situation with Trump.
When I was chief oversight counsel for the House Judiciary Committee during the scandal caused by President Bush’s firing of seven Republican U.S. Attorneys a decade ago, I saw first-hand the damage done to DOJ by politicization there. Now the nation is seeing it again. It took the resignation or removal of Attorney General Gonzales and other political appointees to help restore honor and integrity to DOJ then. It will take similar removal now to restore honor and integrity to DOJ and our nation.