First Charges Filed in Mueller Investigation

[birdman]

I applaud your instinct to read the words of the statute to determine its meaning. There are, however, certain rules and/or maxims you are missing that courts will apply to guide how even seemingly simple phrases are to be interpreted.

The language of the statute (52 USC 30121) provides that it shall be unlawful for a foreign national to make, or for a campaign to knowingly solicit, accept or receive from a foreign national, "a contribution or donation of money or other thing of value . . . in connection with a Federal, State, or local election." In interpreting the meaning of the phrase "other thing of value," there are two obvious principles of statutory interpretation that courts will apply -- ejusdem generis and the rule of lenity.

First, the ejusdem generis maxim provides that "where a class of things is followed by general wording that is not itself expansive, the general wording is usually restricted things of the same type as the listed items." An example of this maxim would be a statute that applies to "cars, trucks, buses, motorcycles, and other motor vehicles." If read in isolation, "motor vehicles" could technically refer to an airplane or the space shuttle, because both are vehicles that have a motor. But the maxim would counsel for excluding airplanes and the space shuttle from the list of regulated vehicles because the types of vehicles specifically listed all have the common trait of being land-based. Here, this isn't a classic case for application of the ejusdem generis maxim, insofar as there is only one specific term ("money") listed, but a court would nevertheless likely apply the maxim in this situation because the situation is similar to the classic application -- a narrow term followed by a broad one and, as set forth below, the limiting element of the one word is clear based on other contextual clues. Thus applied, the maxim would limit the meaning of the broad phrase "other thing of value" to mean "other thing of value that is similar to money." Applying that meaning here, "other thing of value" would, arguably, include things like precious metals, tangible items (like a car, plane, or boat), etc., but it would not include intangible things, like information. Moreover, because a stack of emails is unlike money in that it doesn't have an obvious extrinsic value outside of the context of the thing being regulated (i.e., the campaign at issue), a stack of emails would not be a "thing of value."

Second, the rule of lenity is a due-process based limitation on criminal statutes. It is a bit of a fiction (because no one opens the US Code for an afternoon of light reading), but the idea is that criminal defendants must have notice in the text of a statute that their actions were, in fact, criminal. Thus, in the event a criminal statue is vague, it will be interpreted narrowly to avoid any due process concerns with lack of notice. Here, the statute is plainly vague as to whether "any thing of value" includes information/emails, so a court would most likely construe that term narrowly to avoid any due-process based concerns.

Finally, it is also worth noting that the statue was enacted against the backdrop of concerns over the influence of foreign money into US elections. That's why the statute prohibits "contributions" and "donations." It would both strain the English language and bypass the animating spirit of the statute to say that the provision of information/emails is a campaign "contribution" or a campaign "donation," (particularly as to information considering it isn't a "thing" even if it had "value" in some sense of the word). Those terms more appropriately apply what the statute was designed to prevent -- undue influence of foreign funds in US elections -- than information/emails containing opposition research on a candidate and/or correspondence from the opposing convention.

I'm just spitballing here, but this is the basic outline of the argument, as I see it. I'm confident I could really put together a scintillating argument on this point if I had the inclination.

OK, that’s actually helpful. But, in response to the first explanation, why wouldn’t legislators use a phrase like “and similar things” instead of “other things of value” at the end of that list of prohibited items if they wanted to limit the scope of things that could have value? The phrase other things of value seems intentionally vague and broad. The second explanation sounds like it is a principle to protect defendants from over zealous prosecutors, which I respect.

 

[birdman]

MSNBC reported he was fired.

I thought I saw somewhere that he was asked to resign so he did, that is functionally the same as being fired but it’s different on paper. I don’t have a link though.

 

[PhDeac]

 

[Newenglanddeac]

Prosecutors Consider Bringing Charges in DNC Hacking Case

At least six Russian government officials are identified as part of ongoing investigation

https://www.wsj.com/amp/articles/pr...inging-charges-in-dnc-hacking-case-1509618203

 

[birdman]

Arguably, "similar things" is even more confusing, at least from a linguistic standpoint. The issue becomes "*how* is it similar?" Is a car similar to money? Not really. Is an envelope similar to money? Yes, in shape. The "other thing of value" identifies the trait -- value -- that is the key characteristic we are looking at to determine similarity. The context and history of this statute would make the common trait clear, but that isn't always the case.

It might have been better to say "money and other similar things of value," but one of the goals of maxims like this is to save laws from legislatures' own ineptitude based on predictions of intent in imperfect use of language.

Well, that is super frustrating to a non-lawyer. The word “value” has a widely accepted academic meaning and colloquial meaning which doesn’t seem to matter here.

 

[birdman]

Maybe, but the statute doesn't just say "value." It has a whole bunch of other words that inform the meaning of "value."

If the statute simply regulated "any thing of value" your argument would be better, although, even then, you'd have a circularity problem insofar as anything the campaign acquires is, by definition, valuable to it (at least), so the term "value" doesn't really do anything as a textual matter. The statute might as well regulate "any thing." Courts try to interpret statutes in such a way that all of the words do something, so this reading would still be problematic.

There is a standard definition of the word “value”, especially when applied to things. A thing has value when some one is willing to pay money for that thing. That doesn’t mean “anything” it means someone has to be willing to exchange money for the thing in question. Yes, that means there are lots of things of value to a campaign but it is not open ended. Increasingly in the last couple decades, data has value to a campaign, acquiring data on voter demographics and preferences or on the opponent’s past behaviors and activities costs the campaign money, which means data, or information in other words, has a value to a campaign. If a campaign gets that data for free from an outside party, the campaign can spend its money on other things like commercials that use the data provided to them. I would think a prosecutor could make a case for that through a series of expert witnesses and by presenting data on how much money campaigns typically spend on the types of information the Russians provided to Trump for free. But I’m not a prosecutor.

I am not saying you’re wrong about how the courts are likely to handle this, I am saying that it is frustrating that the common definition of the term will be ignored or so narrowly applied. Do prosecutors at least get a chance to make this case or the narrow interpretation a forgone conclusion in the courts.

 

[birdman]

If memory serves, the statute was written in 2002. By that time, legislatures knew about the value of data, and, more importantly, they knew how to refer to it when they wanted to. They didn't here.

Staples sells envelopes. I'm no Bob Barker, but a single envelope probably costs about 15 cents. By your definition, it has value. Do you really think that Congress would have wanted to make it a federal crime for a foreign national to give a campaign a letter in a blank, unsealed (and thus re-usable) envelope? There are hundreds of other similar hypos where your reading would lead to a reductio ad absurdum.

And, yes, prosecutors most certainly will be given a chance to argue their position. They might even win, although I don't think they should or will.

So, the right to bear arms includes any kind of gun imaginable to the judiciary but the phrase things of value only applies to certain things with certain values. I know, straw man, yadda yadda; that seems like selective selectivity.

 

[JamesSokolove]

 

[JamesSokolove]

 

[Demonwolverine]

Under Heller, the right to bear arms does not mean any kind of gun imaginable. It covers handguns, but it would not cover automatic weapons, for example.

In any event, the text, context, and historical setting of the Second Amendment is so different from the statute at issue here that there really isn't any overlap in interpretive methodology.

Why is that? Shouldn't it scale to the power of the government so that when Obama inevitably comes to take my women, children and rights I can adequately defend myself? How am I supposed to stand my ground with a handgun when I'm going against government issued AK's!

 

[PhDeac]

If memory serves, the statute was written in 2002. By that time, legislatures knew about the value of data, and, more importantly, they knew how to refer to it when they wanted to. They didn't here.

Staples sells envelopes. I'm no Bob Barker, but a single envelope probably costs about 15 cents. By your definition, it has value. Do you really think that Congress would have wanted to make it a federal crime for a foreign national to give a campaign a letter in a blank, unsealed (and thus re-usable) envelope? There are hundreds of other similar hypos where your reading would lead to a reductio ad absurdum.

And, yes, prosecutors most certainly will be given a chance to argue their position. They might even win, although I don't think they should or will.

So your argument is that it would be a federal crime for a foreign national to give a campaign 15 cents but not a federal crime for a foreign national to give a campaign an envelope worth 15 cents.

 

[CallowayDeac04]

Definition of "Contribution"

This was a very thorough analysis. Thank you.

That said, I would like to point out that the statute (52 U.S. Code § 30101) has Definitions to provide additional guidance. Section 8 therein describes, in subsections A and B, what a "contribution" does and does not include, respectively. Notably, the term “contribution” includes "(i) 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 [...]"

In this regard, I interpret the statute to place a greater importance on the intent/purpose of the contribution rather than necessarily the "thing of value" itself.

I applaud your instinct to read the words of the statute to determine its meaning. There are, however, certain rules and/or maxims you are missing that courts will apply to guide how even seemingly simple phrases are to be interpreted.

The language of the statute (52 USC 30121) provides that it shall be unlawful for a foreign national to make, or for a campaign to knowingly solicit, accept or receive from a foreign national, "a contribution or donation of money or other thing of value . . . in connection with a Federal, State, or local election." In interpreting the meaning of the phrase "other thing of value," there are two obvious principles of statutory interpretation that courts will apply -- ejusdem generis and the rule of lenity.

First, the ejusdem generis maxim provides that "where a class of things is followed by general wording that is not itself expansive, the general wording is usually restricted things of the same type as the listed items." An example of this maxim would be a statute that applies to "cars, trucks, buses, motorcycles, and other motor vehicles." If read in isolation, "motor vehicles" could technically refer to an airplane or the space shuttle, because both are vehicles that have a motor. But the maxim would counsel for excluding airplanes and the space shuttle from the list of regulated vehicles because the types of vehicles specifically listed all have the common trait of being land-based. Here, this isn't a classic case for application of the ejusdem generis maxim, insofar as there is only one specific term ("money") listed, but a court would nevertheless likely apply the maxim in this situation because the situation is similar to the classic application -- a narrow term followed by a broad one and, as set forth below, the limiting element of the one word is clear based on other contextual clues. Thus applied, the maxim would limit the meaning of the broad phrase "other thing of value" to mean "other thing of value that is similar to money." Applying that meaning here, "other thing of value" would, arguably, include things like precious metals, tangible items (like a car, plane, or boat), etc., but it would not include intangible things, like information. Moreover, because a stack of emails is unlike money in that it doesn't have an obvious extrinsic value outside of the context of the thing being regulated (i.e., the campaign at issue), a stack of emails would not be a "thing of value."

Second, the rule of lenity is a due-process based limitation on criminal statutes. It is a bit of a fiction (because no one opens the US Code for an afternoon of light reading), but the idea is that criminal defendants must have notice in the text of a statute that their actions were, in fact, criminal. Thus, in the event a criminal statue is vague, it will be interpreted narrowly to avoid any due process concerns with lack of notice. Here, the statute is plainly vague as to whether "any thing of value" includes information/emails, so a court would most likely construe that term narrowly to avoid any due-process based concerns.

Finally, it is also worth noting that the statue was enacted against the backdrop of concerns over the influence of foreign money into US elections. That's why the statute prohibits "contributions" and "donations." It would both strain the English language and bypass the animating spirit of the statute to say that the provision of information/emails is a campaign "contribution" or a campaign "donation," (particularly as to information considering it isn't a "thing" even if it had "value" in some sense of the word). Those terms more appropriately apply what the statute was designed to prevent -- undue influence of foreign funds in US elections -- than information/emails containing opposition research on a candidate and/or correspondence from the opposing convention.

I'm just spitballing here, but this is the basic outline of the argument, as I see it. I'm confident I could really put together a scintillating argument on this point if I had the inclination.

 

[CallowayDeac04]

Understood. But the statute talks about "donations of money" as separate from "contributions." The former is more straightforward (and perhaps less applicable to the current understanding of this case) than the latter.

True, but the statue also prohibits "donations," which does not have this intent limitation.

 

[tiltdeac]

Well, that is super frustrating to a non-lawyer. The word “value” has a widely accepted academic meaning and colloquial meaning which doesn’t seem to matter here.

Maybe, but the statute doesn't just say "value." It has a whole bunch of other words that inform the meaning of "value."

If the statute simply regulated "any thing of value" your argument would be better, although, even then, you'd have a circularity problem insofar as anything the campaign acquires is, by definition, valuable to it (at least), so the term "value" doesn't really do anything as a textual matter. The statute might as well regulate "any thing." Courts try to interpret statutes in such a way that all of the words do something, so this reading would still be problematic.

While I certainly appreciate the legal expertise, and obviously this sort of argument is crucial to understand any specific charges that would be brought against individuals, I feel like it can also lose the forest for the trees. When people talk about collusion, they for the most part aren't talking about the technicalities of how collusion is defined legally. They are talking about a commonly understood definition of the word: broadly, did the Trump campaign interact directly with the Kremlin or other agents/pawns of the Russian government in an attempt to influence the election in some form. Based on what we know from the Papadopoulos case, that answer seems to be clearly yes, though we don't know exactly who was involved and how high up in the campaign it went. If, by legal technicality, providing emails or other data doesn't qualify as providing something of "value" in a way that can result in prosecution, that is important for the individual who might otherwise be charged with a crime. But I don't believe whether it fits the definition of criminal (trees) has much bearing at all one the forest here. It's terrible regardless.

 

[RChildress107]

Obviously. I mean, the statute says "money" and 15 cents is money. As I stated, the purpose of the statute was to prohibit foreign nationals from making campaign contributions. 15 cents is a campaign contribution, however small.

A prosecutor isn't likely to indict for a 15 cent contribution, but that isn't relevant to the meaning of the statute.

Yeah I think you've strayed back into strictly applying the use of funds in the definition of knowingly to the entire statute again. That's a plausible reading but not much more plausible than the "thing of value" refers to information reading. If a foreign national donated a campaigns entire supply of envelopes (worth many millions I presume) the national and the campaign would both violate the statute just as they would if the donation came in cash.

 

[RChildress107]

Why is that? Shouldn't it scale to the power of the government so that when Obama inevitably comes to take my women, children and rights I can adequately defend myself? How am I supposed to stand my ground with a handgun when I'm going against government issued AK's!

Because Scalia refused to apply his own judicial philosophy when it went against his desired policy result (something he was actual pretty good at earlier in his career).

 

[birdman]

Yeah I think you've strayed back into strictly applying the use of funds in the definition of knowingly to the entire statute again. That's a plausible reading but not much more plausible than the "thing of value" refers to information reading. If a foreign national donated a campaigns entire supply of envelopes (worth many millions I presume) the national and the campaign would both violate the statute just as they would if the donation came in cash.

Yeah, wouldn't the entire purpose of adding a phrase like other things of value be to cover things aren't actually money but have some monetary value?

 

[birdman]

While I certainly appreciate the legal expertise, and obviously this sort of argument is crucial to understand any specific charges that would be brought against individuals, I feel like it can also lose the forest for the trees. When people talk about collusion, they for the most part aren't talking about the technicalities of how collusion is defined legally. They are talking about a commonly understood definition of the word: broadly, did the Trump campaign interact directly with the Kremlin or other agents/pawns of the Russian government in an attempt to influence the election in some form. Based on what we know from the Papadopoulos case, that answer seems to be clearly yes, though we don't know exactly who was involved and how high up in the campaign it went. If, by legal technicality, providing emails or other data doesn't qualify as providing something of "value" in a way that can result in prosecution, that is important for the individual who might otherwise be charged with a crime. But I don't believe whether it fits the definition of criminal (trees) has much bearing at all one the forest here. It's terrible regardless.

It is also important to remember, I think, that the recourse for nefarious acts, like colluding with a foreign government to influence an election, at the highest level of government, are political solutions not criminal law. Impeachment does not have a criminal standard.

 

[RChildress107]

It is also important to remember, I think, that the recourse for nefarious acts, like colluding with a foreign government to influence an election, at the highest level of government, are political solutions not criminal law. Impeachment does not have a criminal standard.

This. What Junebug and other republican legal scholars are doing is claiming that if the theory of the case (collusion with Russia to influence an election) isn't a crime then there shouldn't be a special prosecutor in the first place. It's not nearly as clever as they think it is.

 

[DG3]

This. What Junebug and other republican legal scholars are doing is claiming that if the theory of the case (collusion with Russia to influence an election) isn't a crime then there shouldn't be a special prosecutor in the first place. It's not nearly as clever as they think it is.

Are you an attorney? A sincere question.