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Trump’s legally problematic claim that he’d accept “oppo research” from foreign governments, explained

He’s saying that Don Jr. did nothing wrong. Mueller told a more complicated story.

President Donald Trump in the Cabinet Room of the White House in Washington, DC, on June 13, 2019.
Mandel Ngan/AFP/Getty Images
Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

President Donald Trump’s remarks that he’d likely accept “information” offered by a foreign government for use in his reelection have caused intense controversy — and reopened wounds from the Mueller investigation and the 2016 campaign.

“I think you might want to listen. I don’t — there’s nothing wrong with listening. If somebody called from a country — Norway — ‘We have information on your opponent’ — oh, I think I’d want to hear it,” the president told ABC’s George Stephanopoulos.

Trump continued that if he thought there was “something wrong” with the offer he’d “maybe” tell the FBI, but asserted that accepting “oppo research” from a foreign government sounded fine to him. “They have information, I think I’d take it,” he said.

The key context is that Trump’s son, Donald Trump Jr., tried to do exactly this in 2016 — by taking a meeting to get dirt on Hillary Clinton that was said to be coming from the Russian government. Mueller investigated Don Jr.’s conduct for a potential campaign finance violation but decided not to charge him.

Trump is continuing to defend his son’s conduct, but his assertion poses both ethical and legal issues. It’s also being interpreted as yet another sign that the president remains unbothered with the broader Russian effort to help him win in 2016, including by hacking and leaking Democrats’ emails.

These latest comments seemed to go too far for even some of the president’s allies. “You don’t want a foreign government or foreign entity giving you information because they will want something back,” Fox and Friends host Brian Kilmeade said Thursday. “If anybody knows that, it’s the president. There is no free lunch. If someone wants information, then they’re going to want influence. I think the president’s got to clarify that.”

“I believe that it should be practice for all public officials who are contacted by a foreign government with an offer of assistance to their campaign — either directly or indirectly — to inform the FBI and reject the offer,” Sen. Lindsey Graham (R-SC) tweeted. Sen. John Cornyn (R-TX), meanwhile, said Trump’s remarks were “dangerous territory”.

However, Graham and Cornyn both went on to muddy the waters by arguing that Hillary Clinton’s campaign’s funding of the Steele dossier was similarly problematic. And while Democrats were naturally outraged by Trump’s comments, they didn’t change the minds of many in the caucus who remain opposed to starting an impeachment inquiry, according to Politico.

This is all because of Donald Trump Jr.’s meeting

Stephanopoulos asked Trump about this topic in the context of questions about Donald Trump Jr.’s infamous Trump Tower meeting with a Russian lawyer in 2016.

Back in June of 2016, Don Jr. received an email from an acquaintance: Rob Goldstone, a British publicist who worked for the Agalarov family, a wealthy Azeri-Russian father-son pair of real estate developers who had worked with the Trumps before.

Goldstone said that Aras Agalarov had met with the “Crown prosecutor of Russia,” who had “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.”

Goldstone added: “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump — helped along by Aras and Emin.”

Don Jr. responded with enthusiasm, writing, “if it’s what you say I love it especially later in the summer.” Soon, they agreed to set up a meeting in Trump Tower to discuss the information.

The meeting (with the Russian lawyer Natalia Veselnitskaya, Goldstone, and others) in fact seems to have been a dud — the Mueller report does not document any useful information being passed on or any deal being struck. And Mueller found no indication that the offered information had any connection to the Russian hackings. (“The investigation did not identify evidence connecting the events of June 9 to the GRU’s hack-and-dump operation,” the report says.)

But Don Jr.’s eagerness to accept dirt said to be coming from a foreign government was viewed as scandalous — and some legal experts even argued it was criminal, since it’s a violation of campaign finance law for a campaign to accept or even solicit a “thing of value” from a foreign source. (Mueller did not end up filing charges against Don Jr., though, for reasons I’ll get into below.)

Trump thinks accepting information from foreign governments is fine

That, then, is the background for Stephanopoulos’s question about Don Jr.: “Should he have gone to the FBI when he got that email?”

Trump said no. He argued, essentially, that such a thing would be naive. “Give me a break. Life doesn’t work that way.” He said that if something inappropriate was going on, the response should be to “throw somebody out of your office,” but essentially argued that calling the FBI would be too much. When Stephanopoulos said the FBI director said candidates should call them in such a situation, Trump responded: “The FBI director is wrong.”

But then Stephanopoulos asked the question that would cause Trump some trouble.

“Your campaign this time around, if foreigners, if Russia, if China, if someone else offers you information on opponents, should they accept it or should they call the FBI?”

Riffing, Trump gave the odd response, “I think maybe you do both.” He continued: “I think you might want to listen. I don’t — there’s nothing wrong with listening. If somebody called from a country — Norway — ‘We have information on your opponent’ — oh, I think I’d want to hear it.” (Note that Trump chose to mention a benign-sounding country, Norway, rather than responding to the specific question about Russia or China.)

Pressed by Stephanopoulos, Trump made a distinction between foreign “interference” and simple “information” or “oppo research,” which he claimed was perfectly fine to accept from a foreign source.

It’s not interference. They have information. I think I’d take it. If I thought there was something wrong, I’d go maybe to the FBI, if I thought there was something wrong. But when somebody comes up with oppo research, right, they come up with oppo research. (mockingly) “Oh, let’s call the FBI.”

The FBI doesn’t have enough agents to take care of it. When you go and talk, honestly, to congressmen, they all do it. They always have, and that’s the way it is. It’s called oppo research.

Note that Trump left open the possibility that if he “thought there was something wrong,” he’d go to the FBI. And he doesn’t say it was okay to accept hacked or stolen material from a foreign power. (But he probably thinks it is, since he did publicly ask Russia to “find” Hillary Clinton’s emails during the campaign, and privately requested Michael Flynn to try and get ahold of those emails.)

Still, the gist seems to be: Don Jr. did nothing wrong, and if a foreign government has information that could help Trump’s reelection campaign, Trump would be happy to hear it.

Where Mueller came down on Don Jr.’s meeting

People are appalled at Trump’s remarks for a variety of reasons. Some argue that it’s simply unethical to accept “opposition research” from a foreign government (and especially a foreign adversary). Some, like Fox’s Brian Kilmeade, pointed to the practical problem that said foreign government will want to be rewarded.

But there’s also an underlying legal issue on which Trump seems to be giving very bad advice.

That is: Trump says it should be no problem for a campaign to accept “opposition research,” because it is just information.

Federal election law, however, states that campaigns cannot accept contributions of money or any “thing of value” from foreign sources. So, is opposition research — like the “official documents and information that would incriminate Hillary” promised to Don Jr., or the hypothetical information from Norway Trump mused about — a thing of value?

The Mueller report explored this very topic, and concluded: probably. “There are reasonable arguments that the offered information would constitute a ‘thing of value,’” the report reads. Citing various legal authorities on just what would count, Mueller writes:

These authorities would support the view that candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply.

...Political campaigns frequently conduct and pay for opposition research. A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.

But Mueller did not unreservedly endorse this view — he also expressed some concerns about how this interpretation would fare in court:

At the same time, no judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance laws. Such an interpretation could... raise First Amendment questions. These questions could be especially difficult where the information consisted simply of the recounting of historically accurate facts. It is uncertain how courts would resolve those issues.

Still, leaving this issue aside, Mueller said, he didn’t end up bringing charges against the meeting’s participants for two separate reasons.

The first problem was establishing willfulness — namely, did Don Jr. and the other meeting participants know they were breaking the law? “The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context,” Mueller wrote.

The second problem, Mueller said, is that it was difficult to value the promised information from Goldstone at above $2,000, the threshold for a criminal violation. “Although damaging opposition research is surely valuable to a campaign, it appears that the information ultimately delivered in the meeting was not valuable,” he wrote. Plus, when Don Jr. agreed to take the meeting, he may have understood the information “as being of uncertain worth or reliability.”

So Mueller most certainly did not say that accepting opposition research from a foreign government is very legal and very cool. He did, however, choose not to bring charges in this particular instance, for reasons relating to the specifics of the evidence and the situation.

Republicans are bringing up the Steele dossier

Trump and his defenders, point to an example of supposed wrongdoing on this topic from Democrats’ side: the Steele dossier.

To recap: the lawyer for Hillary Clinton’s 2016 campaign paid an opposition research firm (Fusion GPS), which subcontracted with a foreign national (former British spy Christopher Steele) to get information from foreign nationals about Donald Trump’s ties to Russia.

“We had a major American political party hire a foreign national, Christopher Steele, to dig up dirt on an American presidential candidate,” Sen. Graham tweeted Thursday, as a semi-excuse for Trump’s comments.

Now, the employment of Steele as a subcontractor on its own does not appear to be illegal. The law “does not prohibit paying foreigners at market value to perform services,” UC Irvine law professor Rick Hasen said back in 2017.

Yet Steele was indeed soliciting information from foreign nationals with the goal of helping Clinton’s campaign — and some of these were allegedly Russian government officials. Steele’s reports cite several anonymous sources, including a “senior Kremlin official,” a “senior Russian Foreign Ministry figure,” “former top level intelligence officer still active in the Kremlin.”

There are obvious differences here from the Trump/Russia situation. For instance, Steele’s sources were allegedly providing information about the Russian government’s wrongdoing, and not understood (so far as we know) to be advancing the Russian government’s interests. Still, when the topic of opposition research from foreign sources comes up, it’s certainly worth keeping in mind what the Clinton campaign did with Steele.

The big picture

Nearly two months after the Mueller report’s release, Congress remains at an impasse about what to do next. The special counsel did not end up charging any crimes related to collusion with the Russian government to interfere with the election. He also chose not to say whether Trump criminally obstructed justice.

One faction of House Democrats has supported beginning an impeachment inquiry against Trump, based on the conduct described in the report. Yet the majority of the caucus, including Speaker Nancy Pelosi, doesn’t want to go down that road.

So now come Trump’s new comments. They are certainly awkward for Republicans to defend — but that’s nothing new. Trump himself has already walked them back sort of-but-not-entirely, pretending he was only talking about “meetings” with foreign governments in which they talk about “everything.”

Looming over all this is the question of what, exactly, this might mean for the 2020 election. Trump’s comments certainly could be interpreted by foreign powers as a green light to send him whatever information he might find helpful.

That said, Trump himself and foreign governments are all surely aware of what that might lead to: another lengthy investigation like Mueller’s, which even though it didn’t end disastrously for Trump, surely wasn’t a pleasant experience.