Indicted Russians cite Kavanaugh ruling
Lawyers say ‘issue advocacy’ not crime for foreign nationals.
A Russian WASHINGTON — company accused by special counsel Robert Mueller of being partof anonline operation to disrupt the 2016 presidential campaign is leaning in part on a decision by Supreme Court nominee Brett M. Kavanaugh to argue that the charge against it should be thrown out.
The 2011 decision byKavanaugh, writing for a threejudge panel, concerned the role that foreign nationals may play in U.S. elections. It upheld a federal law that said foreigners temporarily in the country may not donatemoney tocandidates, contribute to political parties and groups or spend money advocating for or against candidates. But it did not rule out letting foreigners spend money on independent advocacy campaigns.
Kavanaugh “went out of his way to limit the decision,” said Daniel A. Petalas, a Washington lawyer and former interim general counsel for the Federal Election Commission.
A motion filed by the Russian company this week repeatedly citesKavanaugh’s decision, bringing new attention to his ruling son campaign finance laws and regulations during his tenure on theU.S. Court of Appeals for the D.C. Circuit.
In the case of the foreign national decision, Kavanaugh said the governmentwould have to prove that foreign nationals had knowledge of the law’s restrictions before seeking criminal charges. And he said the ban did not include foreign spending on “issue advocacy and speaking out on issues of public policy.”
The Supreme Court affirmed the decision in 2012 in a one-sentence order, without noted dissent or scheduling the case for a hearing.
The exceptions in Kavanaugh’s opinion, said Richard Hasen, an election law expert at the University of California at Irvine, create “potentially a huge loophole for foreign and undisclosed issue ads on federal elections.”
Kavanaugh’s decision has been embraced by Concord Management and Consulting, one of 16 Russian individuals or companies indicted by a federal grand jury in February in connection with allegedly taking part in an “information warfare” campaign aimed at swaying American voters.
The indictment alleged that Concord paid $1.25 million amonthtothe St. Petersburg-based Internet Research Agency for projects such as setting up rallies for President Donald Trump or various advocacy groups in the United States, creating Twitter and Facebook accounts to spread false information and “to interfere in U.S. political and electoral processes without detection of their Russian affiliation.” The company was charged with one count of conspiracy to defraud the United States.
Concord is alleged to be controlled by Yevgeniy Prigozhin, a Russian catering magnate known as “Putin’s chef” for his longtime association with Russian President Vladimir Putin. It is the only one of those charged to have responded to the indictments.
In Concord’s motion to dismiss the charge, its attorneys frequently cited Kavanaugh and his 2011 decision inBlumanv. Federal Election Commission. The lawyers noted that Kavanaugh distinguished between explicitly political ads — those that urge the public to vote for or against a candidate — and so-called issue ads.
“Foreign nationals are not barred from issue advocacy through political speechsuch as what is described in the indictment — they are only precluded from willfully making expenditures that expressly advocate the election or defeat of a particular candidate,” wroteWashington lawyers Eric A. Dubelier and Katherine J. Seikaly, who are defending the company, citing the Bluman decision.