A little-noticed legal showdown in California poses a threat to a law seen as the backbone of special counsel Robert Mueller’s probe of 2016 Russian election interference.
Ravi Singh, an Illinois-based political consultant and self-proclaimed “campaign guru,” is challenging a decades-old federal law barring foreign involvement in U.S. elections. He calls the provision unconstitutional, insisting Congress can’t regulate the role played by non-citizens in state and local elections.
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Legal scholars say the appeal represents a serious challenge to the statute. And while Mueller has yet to charge anyone with a direct violation of the law, his team alludes to the statute in several legal filings. And many legal experts have cited the foreign donations ban to rebut claims by some pro-Trump partisans and even Trump himself that “collusion” with Russia in the midst of a campaign would not be a crime.
At a time when the special prosecutor’s legitimacy is being attacked on various grounds, a ruling in Singh’s favor would create even more uncertainty around the broader effort to shield U.S. elections from foreign influence.
“It shows there is a lot of untested ground surrounding the foreign national prohibition,” said Joe Birkenstock, a former Democratic National Committee general counsel now with law firm Sandler Reiff.
Singh is appealing a 2016 federal conviction on charges a Mexican real estate developer secretly footed the bill for a quarter million dollars-worth of digital campaign consulting that Singh provided two San Diego mayoral candidates.
The source of the funds for Singh’s campaign work, businessman Jose Azano, has homes in San Diego and Miami and spent much of his time in the U.S., but is not an American citizen or green card holder. He was allegedly hoping to gain influence in a bid to redevelop San Diego’s waterfront.
Singh’s lawyers have leaned on the Tenth Amendment to support their appeal. The clause gives states and the people the powers that the Constitution does not expressly delegate to Congress.
“Congress’s effort to trample on the states’ ability to structure their political processes as they see fit violates the Tenth Amendment,” Singh attorneys Harold Krent and Todd Burns wrote in a recent brief.
Singh’s defense team notes that enforcing a ban on foreigners donating to virtually any U.S. electoral campaign has had some bizarre results. For instance, various localities including Takoma Park, Maryland, San Francisco and Chicago allow non-citizens to vote in local elections of some sort. However, under the broad federal ban, it is illegal for at least some of those foreigners to donate to candidates in those same races.
“If the eligibility of foreign nationals to vote in state and local elections is exclusively a state/local matter, it stands to reason that the eligibility of foreign nationals to make contributions related to such elections is also exclusively a state/local matter,” Singh’s defense wrote.
The legal fight has also highlighted the fact that until the early 20th century, many states had laws on the books specifically allowing for non-citizen voting.
“We’ve forgotten the last 100 or more years of our history — how foreign nationals participated so actively in the life of our country. … That’s a very important tradition,” Krent, dean of the Chicago-Kent College of Law, told POLITICO. “Most states, some even in their constitutions, permitted foreign nationals to vote. It’s a lot richer history than I was aware.”
The Justice Department has a blunt response to that argument.
“It does not matter that some local jurisdictions may permit aliens to vote,” prosecutors wrote in a brief defending the conviction. “That is a matter of grace, not constitutional requirement.”
The prosecution also raised the specter that giving foreigners a green light to spend in non-federal elections could lead to foreign countries effectively taking control of local governments in the U.S, particularly along the border.
“It cannot be beyond Congress’s power to prevent foreign citizens from pumping funds into local and state governments to set up foreign enclaves within United States borders,” prosecutors wrote. “If Canadian citizens decided that they wanted to install favored officials in all towns on the northern border by flooding local elections with foreign national funds, Congress would certainly be acting within its power to thwart it.”
Legal experts are divided about how much traction Singh is likely to get for his argument that Congress went too far in banning foreigners without green cards from donating to state and local races.
“Regulating the activities of foreign nationals is not only a form of protecting self-government and democratic processes, but it’s also a form of protecting the country itself,” said GOP campaign finance lawyer Jan Baran of law firm Wiley Rein.
“I think there’s actually a pretty strong federalism issue here and it’s super interesting,” said Temple University Law Professor Peter Spiro, a leading expert on citizenship and dual nationality. “If non-citizen voting is constitutionally acceptable, I’m not sure I see what the government’s rationale here is. … It’s hard to see the national security explanation when you’re talking about state and local elections, and once you take that off the table it just looks like a federal diktat in terms of how states define their own political community.”
Asked to rate the chance of Singh prevailing, Birkenstock said: “It’s above zero, but I still think it’s uphill. … It’s certainly not frivolous. I think they’re raising worthwhile challenges.”
One reason not to dismiss Singh’s appeal out of hand: The judge who oversaw the trial turned down Singh’s request to put off his 15-month prison sentence while his appeal went forward, but a pair of 9th Circuit appeals judges took the unusual step of reversing that decision and letting the consultant stay out on bail. They said Singh’s defense was raising a “substantial question,” but they didn’t elaborate on whether that was the argument about the foreign national ban or one of several other issues in the case.
“It’s an indication the court takes this seriously,” Krent said.
It’s unclear how quickly the 9th Circuit will rule on the issue and whether a decision will come while Mueller’s probe remains in business. The appeals court announced last week that it may hear oral arguments on the case as soon as March of next year. While there are signs Mueller is wrapping up some portions of his probe, court timelines could easily take the investigation into spring of next year.
The political hot-potato is being handed to the same San Francisco-based appeals court, the 9th Circuit, that continues to draw fire from President Donald Trump and recently touched off an unusual public spat between the president and Chief Justice John Roberts.
“Everything goes to the 9th Circuit. Everything,” Trump complained to reporters last month.
Legal experts said that if the appeals court panel strikes down the foreign donation ban’s application to state and local elections, the judges would probably be careful to make sure their move wasn’t seen as undercutting Mueller’s probe or federal authority over federal elections.
“If the 9th Circuit judges rule on federalism grounds, they would probably try to satisfy any concern about tainting Mueller’s investigation by carving it off from what Mueller is doing,” said Spiro. The ban faced and survived a court challenge several years ago on First Amendment grounds, but the judges never wrestled with the question of whether the prohibition intrudes on state prerogatives.
The prohibition on foreigners donating to U.S. political campaigns dates back to 1966 and was originally enacted as part of the Foreign Agents Registration Act. A decade later, Congress made the provision part of federal campaign finance law.
After a scandal erupted over foreign donations to Democratic Party coffers during the 1996 presidential race, federal prosecutors accused several individuals of violating the ban.
When the so-called McCain-Feingold campaign finance law was passed in 2002, lawmakers cited the 1996 controversy as they reworded the foreign donation ban, making clear that it applied to donations “in connection with a Federal, State or local election” and expanding it to cover TV and radio ads mentioning federal candidates in the lead-up to an election.
But thus far the foreign donation ban has played an elusive role in Mueller’s investigation. Despite leveling more than 100 criminal charges at a total of 34 individuals and three companies, Mueller has yet to directly charge anyone with violating the foreign donation ban.
The foreign donation ban was cited in an early Mueller search warrant for the Alexandria condo owned by former Trump campaign chairman Paul Manafort, who has since been convicted of bank and tax fraud and admitted to evading a federal law requiring registration of lobbyists for foreign governments.
Some have accused Mueller of deliberately avoiding charging a violation of the ban. A Russian firm that is the only defendant currently fighting a Mueller charge, Concord Management and Consulting of St. Petersburg, has alleged that the special counsel didn’t charge the company with violating the prohibition because prosecutors knew they couldn’t show the defendants knew their conduct was illegal, which the law requires.
A criminal complaint against a Russian accountant connected to Concord, Elena Khusyaynova, explicitly cites the foreign donation ban, but doesn’t charge any specific violation of it. (However, that case, focusing on alleged interference in the 2018 midterm elections, is being handled by prosecutors in Alexandria, Va. — not by Mueller’s team.)
“The Special Counsel has pleaded around the knowledge requirements of all related substantive statutes and regulations,” Concord’s American lawyers, Eric Dubelier and Kate Seikaly wrote in a filing earlier this year that accused Mueller’s team of “sleight of hand.”
Last month, however, U.S. District Court Judge Dabney Friedrich rejected Concord’s drive to throw out the conspiracy charge it faces.
Mueller’s office declined to comment on any concerns about how a ruling against the foreign-donation ban could impact his probe. However, at least one Mueller investigator is intimately familiar with the San Diego probe. The FBI agent who oversaw much of the Manafort investigation, Omer Meisel, also played a key role in the probe that led to charges against Singh, Azano and others.
The central focus of the San Diego inquiry — Mayor and former Congressman Bob Filner — never faced a federal charge, but he was hit with state charges and resigned the mayor’s post amidst a sexual harassment scandal.