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I was discussing this sealed indictment against Julian Assange with my wife and she was making the argument that this is not an attack against freedom of the press as granted by the Constitution. She was making the case to me that because Assange has made public statements about his desire for Hillary Clinton to not be POTUS and the strategic release of documents with intent to harm her election, that Assange could potentially be indicted on the below:

https://www.law.cornell.edu/uscode/text/52/30121

I get that the public release of these damaging documents could be argued as "contributions", and that intent makes all the difference here. It seems rather clear that as worded Assange is in violation of this law.

The part where I am confused is how such a law could actually be valid against foreign nationals, especially foreign nationals that have never operated or even stepped foot in the United States. Does jurisdiction for such a law extend potentially to any action deemed harmful to a US election anywhere in the world?

If so then what would stop a country like Iran from passing a law stating that a foreign national depicting an image of the prophet Mohammed is illicit and harmful to the people of Iran? What would stop them from demanding extradition of any person in the world?

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    As to the last paragraph: they can pass any law they like, and they can demand the extradition of whoever they like. It doesn't mean that any other country has to comply with such a demand. – Nate Eldredge Nov 20 '18 at 3:41
  • It is in general possible for the US, or any other country, to pass a law that applies to foreign nationals and/or outside the country. You might like to read about extraterritorial jurisdiction. ( Of course, actually being able to enforce such a law is another story entirely, and may be largely a matter of diplomatic or military influence.) I don't know whether this particular statute is extraterritorial – Nate Eldredge Nov 20 '18 at 3:42
  • Related: law.stackexchange.com/questions/17560/… – Nate Eldredge Nov 20 '18 at 3:45
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    "It seems rather clear that as worded Assange is in violation of this law": how? A statement about his desire for someone not to become president is not a contribution or donation of a thing of value, nor is it an electioneering communication as that phrase is defined. The same is true of the release of documents online. – phoog Nov 20 '18 at 4:24
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The part where I am confused is how such a law could actually be valid against foreign nationals

It is valid against them because it explicitly applies to them. In fact, it applies only to them: The title of the section in question is "Contributions and donations by foreign nationals," and the text of the section reflects that.

A campaign contribution must be received by the campaign organization to be a campaign contribution, so there is the source of US jurisdiction: A foreign person, even one who has never set foot in the US, can nonetheless be subject to US jurisdiction because of an act whose effects are felt in the US, regardless of where in the world the act was initiated.

The restrictions on "electioneering communications" are implicitly concerned with communications inside US territory, but (even ignoring that) they concern only "broadcast, cable, or satellite" communications, which implies that only audio and video communications are in scope. Publication of documents is not covered by this law. So if Assange escapes liability under this law it is likely to be because his acts were not prohibited by it, not because of his citizenship or location

  • I guess when worded like that it seems a stretch to prosecute him under this law. Perhaps then they are trying to prosecute him against the espionage act? Seems like the Pentagon Paper fiasco all over again. – maple_shaft Nov 20 '18 at 10:58
  • @maple_shaft of course, the presence or absence of any implication is rather easier to argue in court than other aspects of statutory interpretation, and if a court hasn't found one way or another then the government can reasonably prosecute on the theory that the law applies everywhere (for presidential and vice-presidential elections) and to media of communication that did not exist when the law was written but may be subject to inclusion by analogy. I think it rather more likely that they would succeed under the espionage act, but I haven't read it so it's just a guess. – phoog Nov 20 '18 at 13:40
  • I also note that the referenced definition of "foreign principal" from title 22 comes from a law that concerns activities "within the United States." Congress seems to want to be careful about criminalizing statements of opinion by foreign people in foreign places, and with good reason. On the other hand, it's also reasonable to seek to prevent foreigners from influencing federal elections. Finding the border between the two may be difficult. – phoog Nov 20 '18 at 13:49
  • "to media of communication that did not exist when the law was written" IANAL but if I am reading this right, it looks like it says it was codified into law in 2002? The Internet as a media of communication was well established already at this point so I would think that it would be a poor argument. – maple_shaft Nov 20 '18 at 13:56
  • @maple_shaft you're right. The term "electioneering communication" was introduced by the 2002 amendment. I had assumed incorrectly that it was in earlier versions of the statute. – phoog Nov 20 '18 at 14:14

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