During the final stages of President Donald Trump's impeachment trial in the U.S. Senate, Deputy White House Counsel Patrick Philbin, responding to a question from Sen. Chris Coons, D-Delaware, about Trump seeking foreign dirt on political opponents triggered outrage when he said that "mere information is not something that would violate the campaign finance laws. … The idea that any information that happens to come from overseas is necessarily campaign interference is a mistake."

Federal campaign finance law makes it unlawful for "a foreign national, directly or indirectly, to make a contribution or donations of money or other thing of value … in connection with a Federal, State, or local election." And "contribution" is "anything of value made … for the purpose of influencing any election." Bob Bauer, former Obama White House counsel argues that this is "extremely broad." 

However, the U.S. Constitution imposes profound limitations on such federal statutes. Campaign finance laws regulate free speech and political association "at the core of the First Amendment," the U.S. Supreme Court noted in the 1968 case Williams v Rhodes. And U.S. Supreme Court decisions, such as Buckley v. Valeo in 1976, have condemned the "influence" language and the phrase "in connection with" as vague and overbroad. As a result, the court has held that a regulation must be "unambiguously campaign related," and, because of that requirement, these phrases have been given very narrow application.

Before we look at the application of this foreign contribution ban to information provided by foreign sources, there is a further limit on the reach of campaign finance laws. Do they apply to a president carrying out his official foreign policy duties? Of course, campaign finance reformers and Democrat activists say yes. The big picture problem is that the progressive elites believe that, once a person is a candidate, that role consumes all others.  

But this is not the constitutional order. 

When the U.S. president talked to the president of Ukraine, he was clearly acting in his official capacity. Under Article II, Section 2, the president has the authority to act as commander-in-chief and to consult with foreign government leaders to make treaties. This means, as the U.S. Supreme Court explained in 1936 in United States v. Curtiss-Wright Export Corp., "the President alone has the power to speak or listen as a representative of the nation (and) … he alone negotiates (treaties). Into the field of negotiation, … Congress itself is powerless to invade it." This necessarily includes barring congressional intrusion into this official function under the guise of campaign finance regulation.

If we assume that campaign finance laws apply to the president in his official capacity in discussions with foreign leaders, is receiving information from foreign sources about an opposing candidate a prohibited foreign contribution?

There are two points. First, in the specific case of Joe and Hunter Biden, of course, the investigation requested by the president was on Joe Biden's conduct as vice president of the United States, not as a candidate. It is perfectly legitimate for a president to ask a foreign country to investigate if a corrupt foreign company attempted to corrupt a sitting vice president.

Democrats say otherwise, because they believe that Joe Biden's status as a candidate immunizes him from investigation for his actions as vice president. Ironically, Trump is also a candidate, but, in the Democrats' view, this necessitates, rather than protecting him from investigation.

Second, is information a "thing of value?" As the Mueller report correctly pointed out, "no judicial opinion has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign finance law." And even if it was, the report acknowledged that information is "of uncertain worth and reliability," so that it often cannot be valued. And criminalizing providing information to a candidate's campaign "raises First Amendment questions," particularly "where the information consisted simply of the recounting of historically accurate facts." 

By examining the Federal Election Commission precedents on the subject, four things are true:

• Information without a market value or cost basis is not a thing of value;
• The foreign contribution ban does not apply if the campaign pays for the information;
• The ban does not apply to volunteers; and
• The ban does not apply to just the receipt of information, the campaign must use it.

The Mueller report applied these principles to June 9, 2016, meeting at the Trump Tower campaign headquarters between campaign officials, including Donald Trump Jr. and a Russian lawyer offering dirt on Trump opponents. Since this meeting was with campaign officials, campaign finance laws can be applied. However, Mueller found two problems with a possible campaign finance violation: difficulty in valuing any information that would be provided and proof that campaign officials acted "knowingly and willfully." It's my belief that no dirt on Trump opponents was actually provided by the Russian lawyer in the meeting. 

Thus, Philbin was quite right when he said that receiving "mere information is not something that would violate the campaign finance laws." It has to be used, have a market value or cost basis but not paid for by the campaign and not be from a campaign volunteer. The president also was quite right when he said in an ABC interview on June 12, 2019, "It's not interference, they have information—I think I'd take it. … If I thought there was something wrong, I'd go maybe to the FBI," because not using the information but taking to the FBI is also not a violation of the foreign contribution ban.

The Democrat members of Congress and their media allies are totally off base. No President could effectively exercise his constitutional authority if his every interaction with foreign officials is subject to second-guessing under campaign finance laws. This is wrong as a matter of policy and barred by the Constitution.

James Bopp Jr. is a First Amendment and campaign finance law attorney with the Bopp Law Firm, PC, of Terre Haute, Indiana. He is special counsel for strategic and campaign finance law advice to the Donald J. Trump for President campaign. Bopp represented Citizens United before the U.S. District Court for the District of Columbia and filed the appeal before the U.S. Supreme Court.