I am as shocked and outraged as Michelle Goldberg is about President Trump’s shocking and outrageous words and deeds [“Trump revels in his immunity,” Opinion, 6/16/2019]. But contrary to totally partisan and popular criticism, not everything Trump says or does is wrong and his recent comments in an interview with ABC journalist George Stephanopoulos is an example. Indignation over his comment that he would listen to “dirt” from a foreign source is excessive and undeserved. Well, yes, he should have immediately acknowledged he would report that kind of information to the FBI. (He has tried to backtrack on this.) But the main point and the important point is that he would not be wrong for receiving and listening to the information just because it was from a foreign source.
One problem is that George Stephanopoulos failed to clarify or pursue the point. We don’t know what Trump would have done with the information because Stephanopoulos did not ask him that. Would he use the information in his campaign? Not asked.
Moreover, Stephanopoulos did not clarify what kind of “dirt” he was talking about. That could make a big difference. Clearly if the information was that a political candidate had committed treason, was guilty of taking a bribe or had committed some other corrupt practice and it appeared credible, of course he would listen. And should listen despite federal law.
A federal statute (52 US Code § 30121) makes it unlawful for
…a person to solicit, accept, or receive a contribution… of money or other thing of value… from a foreign national… in connection with a Federal, State or local election.
The term “something of value” has been interpreted to include something as nebulous as “information” if it has value to a political campaign, such as, for example, voter lists or opinion poll results. There is an argument that pertinent information would have to be “compiled.” And simply having a conversation with a foreign entity isn’t criminal, and it’s unclear when information becomes substantive enough to constitute an illegal contribution, so says James Gardner, a professor at University At Buffalo School of Law who specializes in constitutional and election law. Nevertheless, that statute, according to many authorities, prohibits anyone from soliciting, accepting or receiving any information from a foreign national regarding a candidate for office or a US political campaign.
That just sounds too broad. No one has a duty to remain silent or passive when they receive such information regardless of the source. On the contrary, any politician or any American receiving an offer of such information would have a duty to listen to it and to reveal what he or she had learned if it seemed credible. That is because credible information revealing that a political candidate is guilty of corruption or other wrongdoing is highly relevant to a political campaign and critical to the democratic process. We are not talking here about information questioning a candidate’s academic or military record or alleged personal indiscretions from years past. We are talking about real dirt, that is, information that is vital and central to the candidate’s fitness for the office or integrity. In this case it does not matter where the information came from. If it is politically relevant and credible it cannot be prohibited. This is because to restrict such information would be contrary to the First Amendment. It would be blatant unconstitutional censorship to punish someone for, or prohibit one from, receiving such information or to muzzle communication of it. That is information that the voters have a right to know and should know.
Eugene Volokh, constitutional law professor at UCLA Law School, believes that a statute barring American campaigns from receiving “very high level and sensitive information” from foreign governments would be unconstitutional. He points out that a candidate would have every right to get information and see if it should be put before the American people as evidence that a candidate should not be elected. He comments further that “limiting candidates’ ability to expose their opponent’s misbehavior would violate the First Amendment and no interest in ‘buying foreign interference’ would justify such a restriction.” Professor Gardner, referred to above, has similar reservations about the constitutionality of this law or any laws that attempt to overbroadly limit free speech in a political campaign.
Of course, it would seem that the obvious and simple answer that Trump should have given to George Stephanopoulos is that he would turn this information over to the FBI and to the news media and let the chips fall where they may. Even so, under the letter of the federal law, just receiving or accepting such information constitutes the complete criminal offense and turning it over to the FBI is not an exception provided for in the federal law. So what he did with the information after receiving it, whether turning it over the FBI or to the New York Times, is not a defense; it would not have gotten him off the hook. That’s the literal language of the law. Anyway, the interview discussion never got to that point or to any of the constitutional or democracy issues. What would really be outrageous is for Trump to have said he would receive the dirt and keep it to himself.