In a column for the New York Times, a Fordham law professor suggested special counsel Robert Mueller needs to take time during his July public testimony to correct an egregious mistake in his report to the Justice Department that is an open invitation for Donald Trump to reach out to foreign governments for re-election assistance.
According to Jed Handelsman Shugerman, the former FBI head made conspicuous "legal errors" and left "loopholes" in his report that need clarification and fixing since they contradict settled law.
"President Trump’s recent comments about foreign meetings and opposition research ('I think I’d take it') produced controversy and confusion across the political spectrum. But he is not the only one to blame for the confusion about campaign-finance law. The Mueller report and the Federal Election Commission bear responsibility, too," the professor explained.
"Leaving the statute and regulations ambiguous on foreign meetings invites the Supreme Court to strike them down, as it did with a similarly vague criminal statute this week in U.S. v. Davis," he continued, adding, "Mr. Mueller weakened anti-corruption campaign law by validating First Amendment objections to some of the most basic provisions of campaign finance law — by creating, in effect, a loophole — and by also getting Congress’s statutes on campaign 'coordination' wrong, and then declining to call out the violations he actually found."
Pointing out that "Congress has prohibited foreigners from making 'a contribution or donation of money or other thing of value,'" Shugerman claimed, "The Mueller report created legal uncertainty."
“'No judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value.' That interpretation, he said, could 'raise First Amendment questions' because such information could be simply 'the recounting of historically accurate facts,'" the professor quoted the Mueller report before explaining the root problem of the loophole Mueller provided.
Pointing out that "He [Mueller] puzzlingly made a giant leap to imply that most opposition research — even by foreign governments — might be covered by the First Amendment," the law professor predicted how any exposed overtures by the Trump administration for future foreign assistance would be defended.
"That legal error has serious consequences. First, just as Mr. Trump’s comments were an invitation to foreign governments to help, the Mueller report is an unwitting invitation to Mr. Trump and foreign governments to use opposition research to evade campaign finance law," he lectured. "Second, if any prosecutor tries to indict Mr. Trump or any candidate for trying to use this 'opposition research' loophole, defense counsel will cite the Mueller report as a solid defense."
"Now independent groups or foreign governments can spend millions to provide campaigns with opposition research files, then quote the Mueller report and say they were simply 'recounting accurate facts,'" he wrote before warning, "Campaign officials can offer the same defense."
Writing that is also in the hands of Congress to pass legislation making it clearer that foreign interference is illegal, Shugerman said Mueller should get the ball rolling by clarifying assertions made in his report.
"Mr. Trump has shown his intent to exploit Mr. Mueller’s errors and ambiguities. The 2020 campaign has already begun under a cloud of legal confusion. Congress now must ask Mr. Mueller to fix his mistakes, and the F.E.C. must clean up this mess," he concluded.
You can read the whole report here.