July 12, 2017

THE CORRECT ANSWER, OF COURSE, IS THAT IT’S ONLY A CRIME IF A REPUBLICAN DOES IT. Can it be a crime to do opposition research by asking foreigners for information?

Say that, in Summer 2016, a top Hillary Clinton staffer gets a message: “A Miss Universe contestant — Miss Slovakia — says that Donald Trump had sexually harassed her. Would you like to get her story?” The staffer says, “I’d love to,” and indeed gets the information, which he then uses in the campaign.

Did the staffer and the Miss Universe contestant just commit a crime? Yes, under the analysis set forth in the past couple of days by some analysts, such as my University of California colleague and leading election law scholar Rick Hasen (UC Irvine School of Law) and by Common Cause; Hasen was cited by the Wall Street Journal and CNN; similar arguments were quoted by Dahlia Lithwick (Slate).

Foreigners who aren’t U.S. citizens or U.S. permanent residents, the argument goes, are barred from providing candidates any “thing of value” in connection with any American election campaign. Campaign staff are barred from soliciting any “thing of value” from such foreigners. And, the argument goes, valuable political information about an opponent’s misdeeds is a “thing of value.” . . . Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?

Read the whole thing, by Eugene Volokh.