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A Culture War Truce Opportunity
...or maybe more of a prisoner swap? Or maybe just "demonstration of commitment to principle". Whatever. One thing I've often done in conversations with partisans who want to use some interesting interpretation of law in order to go after a politician they don't like is to really press on their interpretation and confirm that they're willing to apply it in all those ways against politicians they do like. Honestly, most of the time, people just haven't thought in a very nuanced way about interpretation of the law or how politicians/governments typically operate.
So this week, the DC Circuit ruled on a campaign finance case. No, this is not some forward-looking case about behavior that could affect the next election. No, it's not a case about the last Presidential or Congressional election, so there's no possibility for silly partisans to say that any current elected officials are illegitimate or whatever. It's a blast from the past, feeling almost as nostalgic to me as my recent comment on Trump v. US and the Mueller investigation.
In 2016, a political action committee called Correct The Record set out to, well, correct what they believed to be deficiencies in the internet record concerning Hillary Clinton. This was not a years-long effort to manipulate Wikipedia; that post was a couple days ago. But it's kinda like that in some way. Politics is on the spectrum of information war, as was discussed. Whether you believe it's gross 'malinformation' designed to skew perceptions or think that it's just fundamentally good people trying to bring some aspect of truth to light most likely just depends on your relative political valence. In any event, I recall the reddit jokes about Correct The Record back from those days, so again, a bit of nostalgia, but nothing too surprising at first.
It turns out that Correct The Record openly coordinated their activities with the Clinton campaign. This is normally a big no-no for a PAC, but they thought they could leverage an "internet exemption" from 2006, which
And boy did they try to drive a truck through this exemption. They hired staff, hired round-the-clock fact checkers (I guess to troll reddit), conducted polls, produced lengthy research memos, professionally produced videos, and more. They apparently spent like $6M doing this, which is guess is 'marginal' for some applications, but it seems generally quite discontinuous with the spirit of the exemption. They argued that since all of their efforts would eventually, in some way, result as a post or blog or comment or something on the internet, any and all of that effort was simply an "input" to a marginal cost blog or social media post.
Some private citizens (yes yes, it's possible that they're a whatever-level partisan group, even though they claim to be nonpartisan; I didn't bother going to look them up, because it probably doesn't matter) complained about this to the FEC, because apparently, there is a formalized process for the FEC to take in and respond to such complaints. The FEC didn't care. So, they took it to court. Because apparently, you can do that. After some standing hiccups, the district court said that the FEC's interpretation is "contrary to law" and that this kind of PAC behavior in coordination with the campaign totally triggers the conversion from being an 'independent expenditure' to being a 'campaign contribution'. The DC Circuit now agrees.
What is the opportunity here? Well, what are the chances that someone who worked for Correct The Record or the Hillary For America campaign worked from New York or some other state that has various business records laws? What are the chances that someone, anyone, involved in this scheme created a business record somewhere that referred to money spent on this scheme as an "input" to writing a blog in some way that is not an accurate representation of the DC Circuit's interpretation of the law. The probability has got to be high. So, the opportunity is clear - bring the world a scalp. I don't think we need 34 felony charges; even just one will suffice. Bring one single felony charge against anyone involved in this, using some state-level crime like business records fraud, built on an interpretation of federal campaign finance law. At least in this case, you'll have circuit court precedent saying that the underlying action was not compliant with the law. At least in this case, there does not seem to be some additional First Amendment defense possible. It's a pretty clear cut opportunity. If you think it's legitimate to prosecute such felonies generally, then it is highly highly probable that you can bring at least one, and it would demonstrate your commitment to that belief of legitimacy generally.
The most immediate problem with this is that I imagine most such charges would be barred by the statute of limitations at this point. Trump's situation was unique because the prohibitions on indicting a sitting president meant that the SOL was tolled for 4 years while Trump was in office, so they had extra time.
The more important problem, however, is that it isn't going to work. Bragg can bring as many scalps as he wants, but the scalps that he brings are too inconsequential to convince any Trump defender that he's prosecuting in good faith. No one cares about some campaign staffer they've never heard of getting indicted based on records destruction from 8 years ago. If Bragg announced tomorrow that he was indicting 34 former Clinton campaign workers for these violations it would make a headline somewhere outside of the front page and get mentioned toward the end of the nightly news. Except for conservative outlets, who would view it as a vain attempt at convincing them that the prosecution of Trump was okay. If the judge sentences Trump to jail time then his supporters aren't going to shrug and say "well, he did commit the crime" just because a bunch of staffers are under indictment. Even throwing the book at Hillary herself wouldn't do it for them.
Fair enough on SOL. What a shame. Anyone who can solve this problem will get all the kudos I have to give.
I care. I like basic consistency.
We’re SOL re: the SOL, as it were
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