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“Total Exoneration?” Not So Fast.

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Andrew Harnik/AP Photo

Trump remains vulnerable, particularly on the campaign finance front. 

President Donald Trump and his team are spinning the release of Special Counsel Robert Mueller’s redacted Russia report as a harmless distraction that will do nothing to sway voters, and some analysts appear inclined to agree.

The 400-page report’s release “won’t change the basic calculus” that Republicans and Democrats are entrenched in their positions, wrote Peter Nicholas and Elaina Plott in The Atlantic this week, adding that “some Democratic strategists believe that their party shouldn’t fight to keep the issue alive.”

But Trump remains vulnerable, particularly on the campaign finance front. Several ongoing investigations point to clear-cut political money violations related to his hush-money payments, to his inaugural committee, and to his now-shuttered foundation. And the question of whether Trump’s campaign received illegal foreign contributions from Russia—which election law defines as “anything of value”—remains far from settled.

Trump could still face charges once he has left office for the campaign violations that helped send his former personal lawyer, Michael Cohen, to prison for three years. Trump was directly implicated in the payments that Cohen made to buy silence from two women who allegedly had affairs with Trump. Cohen also pled guilty to financial crimes and to lying to Congress in a case brought by federal prosecutors in Manhattan, following a referral by Mueller. Cohen made the payments “in coordination with and at the direction of” Trump, wrote prosecutors, who identified the president as “Individual 1.”

The Southern District of New York is also investigating and has subpoenaed documents from Trump’s inaugural committee, which has struggled for more than two years to fully account for its record $106.7 million haul, and which stands accused of misreporting, self-dealing, and taking foreign donations. One political consultant, W. Samuel Patten, has already pled guilty to a straw donor scheme that funneled $50,000 to the committee from a Ukrainian politician, an uncontested violation of the foreign-money ban.

Prosecutors investigating the inaugural committee are looking at a long list of potential crimes, according to CNN, from money laundering to false statements and conspiracy against the United States. Prosecutors in the District of Columbia and New Jersey are also investigating, as is the House Intelligence Committee. And as with his hush-money payments, Trump’s inaugural committee spending may place him in legal jeopardy if he leaves office before the statute of limitations runs out.

Trump also still faces a lawsuit involving his foundation, despite having agreed to dissolve it in December. Following a two-year investigation of the Donald J. Trump Foundation, the New York State attorney general’s office sued the charity last year, alleging “a shocking pattern of illegality” that included self-dealing and illegal coordination with Trump’s 2016 presidential campaign. State officials also referred the case to the Internal Revenue Service and to the Federal Election Commission.

Trump and his allies, of course, maintain that these and all the other investigations examining his activities are politically motivated, and that he has done nothing illegal. As far as the White House is concerned, only one thing matters: Attorney General William Barr’s release of a single, partial sentence from the Mueller report that appears to rule out collusion. In his March 24 letter to Congress, Barr wrote, “As the report states: ‘[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

That sentence, notes former FEC general counsel Larry Noble, contains a crucial footnote that throws Trump’s claim of “complete and total exoneration” into question. Barr’s footnote, one of only two in the letter, states: “The special counsel defined ‘coordination’ as an ‘agreement—tacit or express—between the Trump campaign and the Russian government on election interference.’”

But that definition of coordination, explains Noble in a CNN op-ed, “is contrary to the law and Federal Election Commission regulations and, more importantly, has been rejected by the Supreme Court.” Barr’s footnote references “agreement” between two parties. The FEC, by contrast, defines a coordinated expenditure as one made “in cooperation, consultation or concert with, or at the request or suggestion of” a candidate or political committee, regardless of whether any agreement was involved.

That’s because Congress explicitly instructed the FEC to rewrite its coordination rules after it banned soft (unregulated) money in 2002, notes Noble, directing the agency that its regulations “shall not require agreement or formal collaboration to establish coordination.” The Supreme Court upheld that directive when it rejected a constitutional challenge to the soft-money ban the following year, writing in McConnell v. FEC that “expenditures made after a wink or nod often will be as useful to the candidate as cash.”

It’s a phrase that invariably calls to mind the meetings in Trump Tower, and Trump’s calling on Russia to release Hillary Clinton’s emails. Noble concludes that “if the Trump campaign ‘coordinated’ with the Russians in their efforts to help get him elected, the Russians made, and the Trump campaign accepted, a prohibited in-kind contribution from a foreign national. If they did so knowingly and willfully, it is a criminal violation.”

Maybe Trump is right, and voters have already moved on. But a recent poll shows that a majority want Congress to keep investigating Trump’s ties with Russia, and believe the Justice Department has shared too few details with the public. As federal and congressional investigations drag on, Trump’s claim that the “Russia hoax is finally dead” will be put to the test—both in federal courthouses and on the campaign trail.



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