by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Andrew McCarthy of National Review Online applies his legal expertise to the latest controversy involving President Trump and a potential 2020 electoral opponent.
Judge [Andrew] Napolitano argues that the July 25 conversation between President Trump and Ukrainian President Volodymyr Zelensky contains the makings of a campaign-finance crime. He highlights Trump’s request for Ukraine’s help in investigating then–vice president Joe Biden. In 2016, Biden pressured Kyiv to drop a corruption investigation of Burisma, a natural gas company that paid Biden’s son, Hunter, big bucks to sit on its board.
Biden, of course, is one of the favorites for the Democratic presidential nomination. Napolitano reasons that the information Trump sought from Ukraine would be a form of “opposition research” that could be seen as an in-kind donation to Trump’s reelection campaign, which should be deemed illegal because the law prohibits foreign contributions and attempts to acquire them. …
… [Joe] DiGenova strongly disagrees. Though there wasn’t much time to elaborate, he is clearly relying on the lack of past campaign-law prosecutions on similar facts. DiGenova is also voicing the prudent conservative hostility to campaign-finance laws: Any expansion of criminal liability would necessarily restrict political speech, the core of First Amendment liberty.
I’m with DiGenova on this, but it’s a closer question than he suggests. Napolitano’s construction of the campaign laws, while not wholly implausible, is purely academic. It ignores real-world concerns about free speech and the prosecutor’s burden to prove intent.
Most of the commentary on this has been very politicized (surprise!). For dyed-in-the-wool anti-Trumpers, no technicality is too trifling to be a felony. For the Trump base, it’s all a witch hunt.