It’s a well-worn pattern: presidential campaigns inspire industry trends as candidates down ticket look to copy a successful White House run. Presidential campaigns and presidents set the tone in more ways than one.
It’s why in some corners of the campaign industry there’s a growing concern that candidates and even consultants or individual campaign staffers are more likely to play fast and loose with election laws given recent comments from President Trump.
Last week, Trump said he would “listen” to foreign entities providing opposition research on his 2020 opponent. That followed Trump’s implication by Michael Cohen last year in the federal campaign finance violations that helped earn his former attorney a three-year prison term.
In March, Trump denied he violated campaign finance laws during the 2016 cycle. His defenders, meanwhile, have invoked the same defense as former Sen. John Edwards (D-N.C.), who was tried for campaign finance violations in 2011 in relation to money paid to support a former mistress. Edwards was acquitted after successfully arguing that the payments weren’t related to his 2008 presidential campaign.
The nothing-illegal-here talk got louder last week when the president espoused a strategy of accepting foreign help for his campaign. Now, that has campaign attorneys saying they’re concerned about the trickle-down cultural impact his statements could have on candidates operating far below the presidential level.
“While every candidate should have counsel to advise on campaign finance issues, the reality is that most do not – and primarily rely on either public documents or what they see in the news as the means of determining what the ‘law’ is,” David Mitrani, a senior associate at the DC firm Sandler Reiff Lamb Rosenstein & Birkenstock, P.C., told C&E. “President Trump’s comments only serve to worsen the ‘if they’re getting away with it, why can’t I?’ mentality that we see amongst less seasoned campaign operatives, and muddies the waters as to what actually are the legal requirements for candidates and their campaigns.”
Election lawyers and even the head of the FEC — which didn’t see a violation of election law in the Edwards case — were already sounding the alarm over Trump’s “listening” comments.
“The president is incorrect about the law, and any candidate who follows his suggestion and accepts valuable campaign material from foreign governments risks criminal and civil penalties,” said Adav Noti, senior director, trial litigation, at the non-partisan Campaign Legal Center.
Heightening the concern is the fact that attempts to interfere in the 2020 election are not just already ongoing, they are even bolder than what we saw in 2016 and 2018.
Tom Burt, an SVP of customer security and trust at Microsoft, recently told the Wall Street Journal: “We are seeing activity by the same Russian actors that we saw target 2016 and 2018.”
Burt said his company has “detected Russian attempts to hack U.S. think tanks, academics and nongovernmental organizations that may be involved in U.S. politics or become advisers to campaigns.”
“They appear to start by doing that reconnaissance and espionage prior to the hacking of campaigns,” he said.
In many ways, political consultants and campaign staffers down the ballot are among the first lines of defense against such attempts in Congressional elections. And a laissez-faire attitude toward election law is essentially an open invitation.
There could soon be even more legal ramifications to the strategy Trump was initially espousing. The president’s comments to ABC last Thursday added new impetus to Democratic legislation moving through Congress that would expand oversight of campaigns’ interactions with foreign entities, and require campaigns to report offers of foreign assistance to the feds.
Specifically, Trump said he would consider both hearing out a foreign entity with “oppo research” on his 2020 opponent and reporting that contact to the FBI.
"It's not an interference, they have information — I think I'd take it," Trump said. "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, 'oh let's call the FBI.' The FBI doesn't have enough agents to take care of it.”
The president later tried to reframe his position. "If I was, and of course you have to look at it because if you don't look at it you're not going to know if it's bad … of course you give it to the FBI or report it to the attorney general or somebody like that," he said during an interview last Friday on "Fox & Friends.”
“But of course you’d do that, you couldn't have that happen with our country.”
Responding to Trump’s earlier comments, Mitrani, who works with Democratic campaigns and groups, said there's “a bright-line rule” when it comes to foreign assistance for campaigns: “While President Trump may not care about campaign finance laws, the many candidates that could see his actions as a green-light to do the same certainly would.”
FEC Chairwoman Ellen Weintraub also tweeted a statement clearly condemning the acceptance of what would be an illegal contribution from a foreign government.