The proper thought experiment

Writing for WaPo, Eugene Volokh comes up with the right hypothetical regarding this week's scandal to end all scandals:

Say that, in Summer 2016, a top Hillary Clinton staffer gets a message: “A Miss Universe contestant — Miss Slovakia — says that Donald Trump had sexually harassed her. Would you like to get her story?” The staffer says, “I’d love to,” and indeed gets the information, which he then uses in the campaign.

Did the staffer and the Miss Universe contestant just commit a crime? Yes, under the analysis set forth in the past couple of days by some analysts, such as my University of California colleague and leading election law scholar Rick Hasen (UC Irvine School of Law) and by Common Cause; Hasen was cited by the Wall Street Journal and CNN; similar arguments were quoted by Dahlia Lithwick (Slate).

If this theory is true, why have a First Amendment? Volokh makes the salient point:

If a Slovakian college student who is studying in the United States called the Clinton campaign with such information, that would be a crime. If the Clinton campaign heard that Mar-a-Lago was employing illegal immigrants in Florida and staffers went down to interview the workers, that would be a crime.

And it would make opposition research on much possible foreign misconduct virtually impossible. Say that Clinton’s campaign heard rumors that the construction of a Trump resort in Turkey might have involved some shenanigans. It’s likely impossible to effectively follow up on that without soliciting some valuable information from foreign nationals, such as foreign government officials who were (hypothetically and allegedly) bribed, or rivals who may have a motive to provide information (recognizing, of course, that any such information may be untrustworthy unless it’s otherwise corroborated). Or say that Bernie Sanders’s campaign heard rumors of some misconduct by Clinton on her trips abroad — it wouldn’t be allowed to ask any foreigners about that.

Volokh has the answer:

 First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights. See Bridges v. Wixon, 326 U.S. 135 (1945) (“freedom of speech and of press is accorded aliens residing in this country”); Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) (“We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders,” including ones who are not permanent residents).

Second, Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?

The Supreme Court did affirm (without opinion) a federal court decision in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), that upheld a ban on contributions and independent expenditures by non-citizen non-permanent-residents, on the theory that the government can use such a ban to limit foreign influence on American elections. But the panel decision expressly stressed that it was limited to the restriction on spending money. And it seems to me that restrictions on providing information to the campaigns — or on campaigns seeking such information — can’t be constitutional. Can it really be that the Clinton campaign could be legally required to just ignore credible allegations of misconduct by Trump, just because those allegations were levied by foreigners?

More to the point; if Fredo Trump cannot talk to Russian lawyers, then how could anyone at all have talked to anyone about the infamous Steele dossier, which also included (purportedly) foreign sources? It's nonsense.

Much, much more at the link, including the dissembling response from Hasen as he defends his nonsensical interpretation of the law.