Gavin Howe
While a president can exert substantial influence over the direction of a country's criminal justice system, it is unclear whether they can enlist foreign help to enforce criminal laws. This is a complex issue that involves international relations, domestic politics, and the interpretation of criminal law.
What You'll Learn
Foreign election interference
Special Counsel Robert Mueller's report on Russian interference in 2016 confirmed that foreign actors made systematic efforts to secretly influence the elections without detection. This was done through paid digital advertising and fake social media accounts, which promoted specific candidates or created public unrest. The report also highlighted the issue of "dark money," where nearly $1 billion of undisclosed funds has been spent on US elections over the past decade, with unknown amounts coming from foreign sources.
In the aftermath of the Citizens United decision, Congress and the FEC have failed to address the role of corporations with foreign ownership or control in influencing elections. This has resulted in a loophole that allows foreign interests to spend money on state and local ballot measures, as the FEC interprets the ban on foreign spending to apply only to races for elective office.
Former President Donald Trump has been at the center of controversies regarding foreign election interference. In 2019, Trump stated that he would welcome foreign assistance to his campaign and would not be prompted to contact the FBI, causing outrage. This was followed by Special Counsel Robert Mueller's documentation that Trump's 2016 campaign welcomed assistance from the Russian government and hid it from the FBI. Trump has also been accused of lying about Russian involvement and defending Russia's actions, even after taking the oath of office. These actions have led to concerns that Trump's comments may be interpreted by foreign governments as an invitation to interfere in future elections.
To address foreign election interference, some have called for new laws and increased transparency. However, others argue that creating new laws is a distraction from holding individuals accountable and that seeking or accepting foreign assistance is already criminalized. The Constitution states that it is Congress's responsibility to hold the President accountable and impose consequences for any misconduct.
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President Trump's comments on foreign assistance
President Trump's EO halted all current foreign assistance and paused new projects, with narrow exceptions like food aid. This abrupt action caused widespread confusion and uncertainty for essential aid programs and global partnerships. According to Senator Coons, the EO harmed US allies and friends while benefiting adversaries like China. It also impacted critical global health funding, such as PEPFAR, which provides HIV treatment for millions globally.
President Trump's comments on foreign aid during the first Cabinet meeting of 2019 were also criticized. He stated that the United States was no longer going to "blindly dole out money with no return for the American people," suggesting that foreign aid does not benefit the country. However, critics argue that foreign aid promotes economic prosperity, international development, and progress toward global goals. It is also consistent with American leadership, as demonstrated by programs championed by prominent Republicans like George W. Bush's President's Emergency Plan for AIDS Relief (PEPFAR).
The budget approved by Congress for foreign assistance is typically less than 1% of US GDP, and the US spends trillions on itself and its citizens. Despite this, President Trump's budget allocations for foreign aid have been significantly lower than those approved by Congress. For example, in 2019, he earmarked $39.3 billion for critical assistance programs, while Congress approved $54.4 billion, which was nearly on par with the previous year's budget.
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The role of the FBI
The Federal Bureau of Investigation (FBI) is the nation's lead federal law enforcement agency, and its investigative authority is the broadest of all federal law enforcement agencies. The FBI has a wide range of investigative programs, including domestic and international terrorism, foreign counterintelligence, cyber crime, public corruption, civil rights, organized crime/drugs, white-collar crime, violent crimes, and major offenders.
The FBI works closely with other federal law enforcement agencies on joint investigations and task forces that address broad crime problems and national security threats. It also collaborates with state and local law enforcement agencies, often pooling resources to investigate and solve cases. The FBI offers training opportunities for local law enforcement officers, including the FBI National Academy and the Field Police Training Program.
In terms of information sharing, the FBI emphasizes close relations with other federal, state, local, and international law enforcement and intelligence agencies. The FBI's central records system provides limited information to authorized law enforcement and government agencies, as well as other entities with a direct law enforcement purpose. The FBI also posts information on its "Wanted by the FBI" website about fugitives, terrorists, kidnapped and missing persons, bank robbers, and others.
The FBI's Criminal Justice Information Services Division plays a crucial role in locating fugitives by placing a "stop" against their fingerprints and immediately notifying local police upon any additional fingerprint receipts. Additionally, the FBI's International Law Enforcement Academy (ILEA) is a multinational effort that provides training to international partners. The FBI Laboratory also offers free scientific examinations of evidence for any federal, state, and/or local law enforcement organization in the United States.
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The FEC chairwoman's statement
As the FEC Chairwoman, I am issuing this statement to clarify the existing laws and regulations surrounding foreign assistance in US elections. It has come to my attention that there is a misleading narrative being propagated by former President Donald Trump and his supporters that Special Counsel Robert Mueller exonerated him of misconduct in his dealings with Russia during the 2016 campaign. This is simply not true. Seeking or accepting foreign assistance in US elections is already criminal, and Mr. Trump's actions in 2016 were a clear violation of the law.
In 2019, President Trump once again caused an uproar by stating that he would welcome foreign assistance to his campaign and that he would not be prompted to contact the FBI if such an offer were made. This statement caused concern among lawmakers and the public, as it indicated that Mr. Trump was open to accepting illegal foreign interference in US elections. Despite later retreating from his comments, Mr. Trump successfully diverted attention from his previous acceptance of Russian assistance during the 2016 campaign and his subsequent lies and defense of Russia's actions.
As the FEC Chairwoman, I want to emphasize that it is illegal for any presidential candidate or campaign to seek or accept foreign assistance in US elections. This includes, but is not limited to, the provision of opposition research, campaign strategy advice, or other valuable information or services. Foreign interference in US elections undermines the integrity of our democratic process and poses a national security threat. It is the responsibility of any individual or organization involved in US elections to report offers of foreign assistance to the FBI immediately.
Furthermore, I call on Congress to hold former President Trump accountable for his acceptance and encouragement of Russian interference in the 2016 election, followed by his lies and defense of Russia's actions after taking office. Congress has a duty to impose consequences for the former President's actions, and it is imperative that they send a clear message that foreign interference in US elections will not be tolerated. Additionally, I urge lawmakers to focus on strengthening existing laws and enforcement mechanisms to better protect the integrity of our elections and safeguard our democracy.
In conclusion, I want to reiterate that seeking or accepting foreign assistance in US elections is a criminal act, and it is the responsibility of all individuals and organizations involved in US elections to report any such offers to the appropriate authorities. We must remain vigilant in protecting the integrity of our democratic process and work together to prevent foreign interference in our elections.
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Preventing foreign nationals from participating in elections
In the United States, federal law prohibits foreign nationals, including foreign citizens and governments, from spending on federal, state, and local elections. However, foreign interests have spent substantial sums to influence U.S. elections in 2016 and 2018, exploiting vulnerabilities in campaign finance laws. To prevent foreign interference, federal and state governments must address loopholes that allow foreign spending and mandate transparency in campaign financing.
The Federal Election Commission (FEC) prohibits foreign nationals from directly or indirectly participating in the decision-making processes of any entity regarding U.S. election-related activities. This includes making contributions, donations, expenditures, or disbursements, as well as involvement in the management of political committees.
To prevent foreign nationals from participating in elections, several measures can be implemented:
- Update regulations to address digital campaign advertising: Foreign actors have utilized paid digital advertising and fake social media accounts to secretly influence U.S. elections. Updating policies to require the disclosure of the true source of campaign funds and extending the foreign national ban to ballot measures can help prevent this type of interference.
- Strengthen laws prohibiting foreign spending: Close loopholes that permit foreign spending in elections and impose strict limits on foreign donations. Require full transparency about the source of all campaign funds to prevent foreign interests from influencing elections.
- Enhance enforcement and penalties: Enact strong criminal penalties for foreign interference, similar to Australia's Foreign Influence Transparency Scheme and Canada's Elections Modernization Act. These laws create new offenses with significant imprisonment terms for covert or deceptive conduct intended to influence elections.
- Improve cybersecurity and collaboration: Work with election campaigns and government agencies responsible for election integrity to enhance cybersecurity measures and prevent foreign interference. Educate the public about foreign interference tactics to increase awareness and resilience.
- Extend restrictions to permanent residents: While permanent residents ("green card holders"), are not considered foreign nationals, their contributions and influence in elections should be carefully monitored to prevent potential abuse or indirect foreign influence.
By implementing these measures, the U.S. government can more effectively prevent foreign nationals from participating in and influencing U.S. elections, protecting the integrity of the democratic process and the right of American citizens to self-governance.
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Frequently asked questions
The Supreme Court has never held that a president is immune from criminal prosecution. However, the Department of Justice (DOJ) has stated that a president cannot be prosecuted while in office. The DOJ's Office of Legal Counsel (OLC) believes that criminal indictment, prosecution, and punishment would incapacitate the presidency. The OLC's opinion is based on the idea that the president would be distracted and unable to function, potentially changing policies to curry favor with the public.
Yes, a president can be held accountable for accepting foreign help or interference in an election. The Constitution states that it is Congress's responsibility to hold the president accountable and impose consequences. However, there is no explicit mention of whether a president can be prosecuted for this.
Impeachment is a possible consequence of a president's acceptance of foreign help in an election. However, impeachment is a political process, and the decision to impeach rests with Congress.
Yes, a president can be prosecuted for crimes committed while in office after they have left office. This does not constitute double jeopardy, and they may be tried in an ordinary court of law.
