A supposed dossier of opposition research on then-presidential candidate Donald Trump is at the center of an ongoing FBI investigation, allegations of political persecution by federal agencies and an effort by liberals to impeach Trump and remove him from the presidency.
But in what would be a spectacular backfire, the presidential candidate who may face jail over the dossier isn’t Trump, but Hillary Clinton, whose campaign appears to have broken federal law in creating the document.
The controversy began when, after the 2016 presidential election, members of the media were shopped a supposed research document claiming Trump has illegal business ties with the Russian government and engaged in relationships with Russian prostitutes.
The leaks and the ensuing FBI investigation have ensnared Trump and his allies in allegations they are secret Russian agents, even though the dossier’s claims have been debunked.
That document had been written by a foreign spy on behalf of the D.C. research firm “Fusion GPS.” After months of speculation as to who ordered and paid for it, it was revealed the dossier was produced for Hillary Clinton and the DNC at the direction of Marc Elias, who served as an attorney for both.
Under the arrangement, Elias directed Fusion GPS to compile for the Clinton campaign and the DNC opposition research on Trump. Fusion GPS then hired former British spy Christopher Steele, who compiled a document which claimed the Russian government had compromising information on Trump. The dossier claimed Russia agreed to help Trump win, and he would do their bidding if elected, or else they would release the damaging information.
But Elias, Clinton and the DNC had a problem. Under federal law, political campaigns and committees are required to publicly report on what they spend money, and who they hired to do it. If “Fusion GPS” were to appear on the publicly-published Federal Election Commission reports on campaign spending by Clinton campaign and DNC, the Trump campaign could begin looking into the transaction and realize he was being investigated.
In order to hide Fusion GPS’s involvement from the public, Elias arranged for the Clinton campaign and DNC to pay his law firm, Perkins Coie, who would then funnel the money to Fusion GPS. That ensured “Fusion GPS” would not appear on FEC reports, concealing the transaction.
Perkins Coie did not order the dossier and performed no work on the dossier, and Fusion GPS was not a company under Perkins Coie, so they were not the true recipient of payments intended to finance the dossier.
Elias initially hired Fusion GPS in April 2016. The Clinton campaign and DNC would make payments on work for the dossier, funneled through Perkins Coie, until October 2016, just a few days before the election. It was likely intended for use in the final debate with Trump.
The Clinton campaign and DNC did not use any of the claims detailed in the dossier, either because they did not find the claims credible or believed Clinton was almost certain to win and did not want to disrupt the news cycle.
It was only after the election, in which Trump shocked Clinton, that the dossier was leaked to the media and used as a pretext to accuse him of “collusion” with the Russian government.
But Trump may not the one in final legal jeopardy.
Under federal campaign finance law, it’s illegal to route campaign payments through a third party to conceal to whom the payment was intended. Federal campaign finance laws are written to require campaigns to be transparent and fully report on what they spend money. Prosecutors generally agree to structure payments to hide the intended recipient constitute filing false reports.
In fact, the Justice Department recently prosecuted a major presidential campaign for doing just that.
In 2015, federal prosecutors indicted, convicted and sentenced three members of Ron Paul’s 2008 presidential campaign for structuring payments to Iowa state senator Kent Sorenson so they went to a film company, who then paid his campaign consulting company.
While Iowa legislative rules forbid presidential campaigns from paying state senators, the payments are not illegal and Sorenson would only have been accused of violating chamber rules. Just as the Clinton campaign did not want “Fusion GPS” appearing on their reports, the Paul campaign did not want Sorenson’s name appearing on theirs.
Just as paying Fusion GPS for research was legal, the payments to Sorensen were legal. Just as the funds expended for Fusion GPS were legally reported in that the amounts, dates and name on the check, Perkins Coie, so were the Paul campaign’s payments to the film company.
But since the film company did not perform Sorenson’s service or arrange the relationship, prosecutors successfully argued the arrangement concealed the true nature of the payments. The three Republican presidential campaign staffers were convicted of causing the filing of false FEC reports.
That leaves Elias, Clinton and the DNC in a precarious legal position. If they structured payments for a politically sensitive service so the name of the recipient would be concealed from the public, they engaged in activity the Justice Department and both a federal judge and jury have ruled is a crime.
In fact, the indictment against the Republican presidential campaign was announced just weeks after the Clinton campaign entered into a nearly identical arrangement with Fusion GPS and Perkins Coie.
That leaves federal prosecutors with a choice. Do they admit such arrangements are legal and vacate their convictions against Republicans?
Or do they enforce the law equally and file charges against Hillary Clinton and the DNC?