With so much attention being paid in recent weeks to former FBI Director James Comey, former FBI Deputy Director Andrew McCabe, Donald Trump, Stormy Daniels and others, one of the most interesting cases of a candidate potentially breaking federal law during the 2016 election has largely been forgotten by the press and, it seems, law enforcement officials: In 2016, Hillary Clinton’s presidential campaign possibly violated federal election law — or, at the very least, the spirit of it.
Below is the evidence against Mrs. Clinton’s campaign.
As The Washington Postreported in October 2017, during the 2016 election cycle, the Democratic National Committee and Hillary for America paid a combined $9.2 million to law firm Perkins Coie. The chair of Perkins Coie’s Political Law Group is Marc Elias, the general counsel of Hillary Clinton’s presidential campaign.
The Post reported and Perkins Coie later confirmed that Elias paid at least some of this money to political research firm Fusion GPS, which hired Christopher Steele, a former British spy, to create the now infamous “Russian Dossier.” The dossier claims to present evidence Donald Trump colluded with Russian agents to win the 2016 election, among other salacious accusations. It was later used, along with other material, by the FBI to obtain a FISA warrant to wiretap Carter Page. The production of the dossier arguably sparked a chain of events leading to the firing of Comey and the appointment of Special Counsel Robert Mueller, so its creation cannot be understated.
Federal election law requires campaigns to disclose to the Federal Election Commission the name and address of each “person to whom an expenditure in an aggregate amount or value in excess of $200 within the calendar year is made by the reporting committee to meet a candidate or committee operating expense, together with the date, amount, and purpose of such operating expenditure.”
Because Fusion GPS was paid more than $200 (exactly how much isn’t clear), those payments should have been disclosed on the Clinton campaign’s disclosure forms. It wasn’t. Instead, the Clinton campaign and Democrats only reported they made payments to Perkins Coie for “Legal Services.”
As the Campaign Legal Center noted in a complaint filed against Clinton’s campaign in 2017, the Federal Election Commission’s “Statement of Policy” says the “‘purpose of disbursement’ entry, when considered along with the identity of the disbursement recipient, must be sufficiently
specific to make the purpose of the disbursement clear. … [a]s a rule of thumb, filers should consider the following question: ‘Could a person not associated with the committee easily discern why the disbursement was made when reading the name of the recipient and the purpose?’”
One of the examples given by the FEC describes a disbursement to an office supply vendor. According to FEC, writing “Supplies” on a campaign disclosure form, when describing a payment made to an office supply vendor, “provides adequate and acceptable disclosure, while a disbursement to a committee staff member for the same purpose of ‘Supplies’ would likely trigger a request for a more complete description of the purpose of the disbursement. In the former case, it is obvious to the reader what type of supplies were purchased, while in the latter case, it is not.”
Given the information above, it’s reasonable to think the Clinton campaign violated federal election law. The only defense Clinton’s supporters might attempt to make is that the Clinton campaign didn’t pay Fusion GPS directly; she paid Perkins Coie, and those payments (dozens of them) were disclosed. Thus, they might claim Clinton did disclose the payments in accordance with FEC rules.
I don’t believe this argument has any merit. The Clinton campaign’s disclosure says the payments made to Perkins Coie were for “Legal Services,” not opposition research or anything else that would describe what Fusion GPS did. “Legal Services” does not appear to be specific enough, according to the FEC’s stated guidelines, to encompass opposition research. (See the “office supplies” example above.)
On this issue, the Campaign Legal Center noted in its complaint against Clinton’s campaign: “The [FEC] has not always required committees to report the identity of subcontractors [in this case, Fusion GPS] whom itemized contractors hire, as long as the stated purpose of the payment to the contractor reflected the ‘actual purpose’ of the subsequent payment to the subcontractor, and the contractor receiving the disbursement has an ‘arms-length’ relationship with the committee making the disbursement. … That is not the case here.”
“The stated purpose of the disbursements to Perkins Coie (‘Legal Services’
or ‘Legal and Compliance Consulting’) did not reflect the ‘actual purpose’ of how the
disbursement was intended to be used in hiring Fusion GPS as a subcontractor,” the Campaign Legal Center added. “Additionally, Hillary for America and the DNC did not have an arms-length relationship with Perkins Coie …”
In full disclosure: I have spoken to one individual with extensive knowledge of this subject matter who explained to me that he believes “Legal Services” is sufficient to include “opposition research,” and thus that the Clinton campaign didn’t break the law. (And no, this expert is not a supporter of Hillary Clinton.) But if political campaigns are permitted to make payments to individuals or organizations through law firms and aren’t required to disclose who those law firms are paying, then campaign reporting requirements are useless, utterly pointless mandates. Under this view, campaigns would essentially be permitted to pay most of their funds to a law firm, which could then pay anyone the campaign wants using vague terms like “Legal Services.” This is madness, and obviously not in keeping with the spirit of campaign finance laws.
I’m not alone in my assessment, either. On April 18, several Republican members of Congress submitted a criminal referral to Attorney General Jeff Sessions recommending the Justice Department investigate several potential crimes committed by Comey, former Attorney General Loretta Lynch, and others. Among the recommendations is a claim the Clinton campaign violated the federal law cited above, as well as a federal law forbidding foreign nationals (Steele is a foreign national) from being paid by a campaign.
The evidence showing that Clinton’s campaign intended to hide from the public their payments to Fusion GPS is clear and, in my opinion, worthy of investigation. But if it turns out courts are willing to allow campaigns to escape disclosure requirements using vague terms like “Legal Services,” then the United States desperately needs new campaign finance laws — and probably better lawmakers to write them.