WASHINGTON — Last week, a senior Justice Department official told reporters that they'd decided not to open a criminal investigation into President Donald Trump’s July call with the Ukrainian president because they couldn’t “quantify” Trump’s request for dirt on former vice president Joe Biden as a “thing of value.”
But the Justice Department hasn’t always required a specific price tag to press charges under criminal laws that refer to “things of value,” court records show. Federal prosecutors have brought cases in the past under theories that sex, government information, witness testimony, worthless stock, and more are, legally speaking, “of value.” States and federal courts have found that “amusement,” a promise to reinstate an employee, and an agreement not to run in an election all count as well.
And former special counsel Robert Mueller wrote in his final report earlier this year that campaign opposition research voluntarily offered to a campaign — say, dirt on a top Democrat running against you — would likely be a “thing of value,” although he noted no court had ruled on that so far.
It’s against the law for a candidate to ask for or accept “money or other thing of value” from a foreign national. But that law and others that also refer generally to things “of value” don’t provide a clear definition of what the term means. It’s been up to judges — and, in the case of campaign finance enforcement, the Federal Election Commission — to weigh in.
The chair of the FEC has taken issue with the Justice Department’s interpretation of “things of value,” and there’s at least one complaint pending before the FEC accusing Trump and his allies of violating campaign finance laws by asking Ukraine for help.
Trump, meanwhile, has continued to ask foreign governments for help attacking a political rival — on Thursday, in front of television cameras, he called on China, along with Ukraine, to investigate Biden and the candidate’s family.
Luke Cass, a former federal prosecutor with the Justice Department’s Public Integrity Section, said the Justice Department had taken a broad view of “things of value” in other types of criminal cases, such as bribery prosecutions, but it rarely came up in campaign finance cases.
“How do you calculate the value of dirt? It’s challenging. What if it turns out there’s nothing negative about the information provided, then it has no value and is worthless?” Cass said. “You have to prove the case beyond a reasonable doubt. … I guess the department’s decision was a recognition of that burden with a statute that’s seldom used and not the clearest.”
Paul Seamus Ryan, vice president for policy and litigation at government watchdog group Common Cause, called the Justice Department’s position “absurd.” Common Cause filed a complaint with the Justice Department and FEC claiming Trump, Rudy Giuliani, and others allegedly involved in soliciting information from Ukraine violated the foreign contribution ban.
“There is no doubt in my mind that a competent prosecutor could prove beyond a reasonable doubt to a jury that an investigation by the government of a foreign country … is a thing of value in this context,” Ryan said.
Any violation of the foreign contribution ban can lead to a civil enforcement action by the FEC or be considered an impeachable offense by Congress, Ryan said. For the Justice Department to prosecute it as a crime, the government would have to show the violation was willful and that the “thing of value” exceeded $2,000 for a misdemeanor charge, or $25,000 for a felony.
Ryan said he didn’t think it would be hard for prosecutors to at least meet the $2,000 line when it came to political opposition research. Cass agreed that prosecutors only had to show that the “thing of value” met the minimum thresholds, as opposed to proving a specific final dollar amount, but that would make it tougher to prove in court, he said.
In the July 25 call between Trump and Ukrainian President Volodymyr Zelensky, Trump asked Zelensky to help find information to attack the legitimacy of the investigation into Russian interference in the 2016 election, as well as damaging information about Biden. The White House on Sept. 25 released a document styled as a transcript of the call — it featured a warning that it wasn’t “verbatim,” though — that quoted Trump asking Zelensky for the “favor” of information after Zelensky pledged to buy more US military technology.
An as-yet-unidentified whistleblower filed a complaint about the call with the intelligence community’s inspector general, Michael Atkinson. Atkinson took the position that the Biden-related request could violate federal campaign finance laws, prompting a review by the Justice Department’s Criminal Division.
A senior Justice Department official, who spoke to reporters last week on condition of anonymity, said that members of the Criminal Division — including career prosecutors from the Public Integrity Section — who reviewed Trump’s call with Zelensky concluded that “whatever this was,” it lacked a “quantifiable value.” Without that, the official said, the department couldn’t formally open a criminal investigation.
The chair of the FEC, Ellen Weintraub, publicly criticized the Justice Department’s interpretation. On Sept. 26, the day after the White House released information about Trump’s call with Zelensky, Weintraub tweeted screenshots of a document she’d submitted to the commission outlining a proposed interpretation of the foreign contribution ban.
“On 'things of value' @FEC,” Weintraub wrote in the tweet, introducing the document. She then quoted from the text: “Indeed, the Commission has recognized the ‘broad scope’ of the foreign national contribution prohibition and found that even where the value of a good or service ‘may be nominal or difficult to ascertain,’ such contributions are nevertheless banned.”
An FEC spokesperson did not return an interview request for Weintraub on Thursday. The FEC currently lacks enough Senate-confirmed members to have a quorum, which means they cannot approve new investigations.
A Justice Department spokesperson did not return a request for comment.
Federal judges for decades have grappled with how to define a “thing of value” in different types of criminal cases. In a federal extortion case in Missouri, for instance, prosecutors asked a judge in 2011 to instruct the jury that the term “means anything of valuable consideration, and it includes intangible objectives as well as tangible items such as money and property. A sexual relationship can be a ‘thing of value.’”
The federal judge presiding over the case approved the jury instruction, and the US Court of Appeals for the 8th Circuit ruled in 2012 that it was the right call, highlighting numerous other federal criminal prosecutions where sex or romantic relationships were defined as things of value.
“Numerous intangible objectives have been held to constitute things of value under a variety of other statutes, including romantic pursuits and sex-related consideration,” the 8th Circuit judges wrote at the time.
Legal scholars debated whether opposition research could count as a “thing of value” under the foreign contribution ban in the summer of 2017, when the New York Times reported that Donald Trump Jr. expressed interest and agreed to a meeting at Trump Tower during the 2016 campaign to get damaging information about Hillary Clinton from Russians.
“If it’s what you say I love it especially later in the summer,” Trump Jr. said in response to the offer.
Rick Hasen, an election law expert at the School of Law at the University of California, Irvine, wrote at the time that, at a minimum, there was enough information to justify an investigation by Mueller.
“There is a very strong argument to be made that ‘very high level and sensitive information’ coming from the government of Russia is a ‘thing of value’ for purposes of federal campaign finance law,” Hasen wrote.
Eugene Volokh, a First Amendment expert at the UCLA School of Law, wrote that a broad interpretation of “things of value” in that type of situation could violate the free speech rights of both US citizens and noncitizens in the country, however.
Mueller and his team addressed the Trump Tower meeting in their final report. They wrote that giving opposition research to a campaign would likely count as a “thing of value” and fall under the foreign national contribution ban, but concluded the government would likely fail if it tried to bring charges. The special counsel’s team hadn’t gotten “admissible evidence” to show any violation was “willful” or that the value of the information met the criminal thresholds.
Mueller’s report cited a series of federal court decisions that dealt with how to interpret “things of value.” In 1979, for instance, the 2nd Circuit ruled that government information counted as a “thing of value,” rejecting the argument that it had to be a tangible piece of property or a document. In that case, federal prosecutors charged individuals with trying to sell material from Drug Enforcement Administration files about government informants.
“Although the content of a writing is an intangible, it is nonetheless a thing of value,” the judges wrote at the time.
The cases listed in Mueller’s report included a 2014 decision from the 9th Circuit in a federal public corruption case, in which the court, quoting from an earlier decision from another court, wrote that a “thing of value” was “defined broadly to include ‘the value which the defendant subjectively attaches to the items received.’”
“The phrases ‘thing of value’ and ‘anything of value’ are broad and inclusive enough to encompass at least some forms of valuable information,” Mueller wrote.