If it looks like a duck and quacks like a duck, it may not be a duck+ READ ARTICLE
Correction appended, Oct. 26, 2016
But she did think it was funny.
A Clinton campaign spokesman said on Tuesday that the Democratic nominee was aware of a stunt to embarrass Donald Trump for not releasing his tax returns, an operation that a conservative activist group investigated in a new video account accusing Clinton of illegal campaign activities.
But the campaign denied any wrongdoing, and independent campaign finance experts say that even if the events in the video happened as portrayed, they don’t support the claim that the Clinton campaign did anything illegal.
In a new undercover sting video released by conservative activist, James O’Keefe, founder of Project Veritas, Democratic operatives are seen discussing Clinton’s personal involvement in a public relations gimmick to punish Trump for not releasing his tax returns.
The public relations operation, which was organized by the Democratic National Committee, involved paid activists dressing up as Donald Duck to follow Trump around and remind voters that he hadn’t released his tax returns.
According to Bob Creamer, founder of the liberal group Democracy Partners, Clinton herself knew about the plan. Creamer is seen in the video explaining that a campaign official said Clinton liked the idea of the ducks and wanted the group to dispatch them.
“In the end, it was the candidate, Hillary Clinton, the future president of the United States, who wanted ducks on the ground,” Creamer says in the video posted on Monday. “So by God, we would get ducks on the ground.”
The Project Veritas sting video suggests Clinton’s supposed involvement constituted illegal coordination between a presidential campaign and an outside group. The makers of the video said it “smacks strongly of illegal coordinated campaign expenditures,” citing unnamed “federal campaign law experts.”
Federal campaign finance law prohibits political campaigning from coordinating on expenditures with outside groups that involve paid media communications. That means that the Clinton campaign and the super PAC supporting Clinton’s bid, Priorities USA Action, cannot write advertisements together, for example, or share data in order to decide what market to place an advertisement in.
It is legal, however to coordinate on other forms of communication, including certain types of messaging, and to contract work to third parties. The Donald Duck activists likely do not qualify under federal law as public communications, which is defined as including television or newspaper advertising, or mass mailings.
“The video makes the allegation that this satisfies the definition of coordinated communication,” said Brendan Fischer, associate counsel at the Campaign Legal Center. But “it’s not at all a clear that the person dressed up as a duck is engaged in public political advertising, or is the sort of conduct envisioned by the [Federal Election Commission] regulations.”
Hillary Clinton did see images of Donald Duck in Trump Tower, according to the campaign.
In mid-August, the Democratic National Committee announced the silly and relatively banal operation. News outlets carried stories and images of Donald Ducks at Trump events and at his real estate properties.
“What is he trying to hide? Is it because he’s not as rich as he says? Is it because he doesn’t donate to charity like he says? Is it because he doesn’t pay any taxes?” Donald Ducks said, according to a DNC press release.
Clinton enjoyed watching the effort. “While Hillary Clinton can’t claim credit for coming up with a duck to highlight how Donald Trump is refusing to release his tax returns, she certainly was amused watching him ride up and down Trump Tower’s escalator,” Clinton campaign spokesman Zac Petkanas told TIME.
But there is no evidence to support Creamer’s claim that Clinton personally directed the operation. And whether she did or not, independent campaign finance experts say that the Donald Duck plan likely did not violate campaign finance law.
The Clinton campaign and Republican groups have pushed at the limits of election law throughout the campaign. A pro-Clinton super PAC, Correct the Record, coordinates with the Clinton campaign on surrogate messaging and opposition research.
Most observers say that kind of coordination is legal because it does not involve paid public communications, but critics like Vermont Sen. Bernie Sanders have said it breaks the spirit of campaign finance law by allowing candidates to be aided by unlimited expenditures. His argument echoes the old saying, “If it looks like a duck, and quacks like a duck, it must be a duck.”
But in the tangled world campaign finance law, appearances are often besides the point.
Correction: The original version of this story incorrectly described how the Donald Duck operation was funded. A Democratic National Committee spokesman says the committee paid for the protest itself.