Ex-SEC counsel: More crypto remarks likely coming from Trump, Harris

While Donald Trump has engaged the crypto community ahead of the November election, Vice President Kamala Harris has some catching up to do on that front.

Whether Harris intends to do so, and how detailed each candidate will get on crypto-related policies over the next two months, remains to be seen.

But Ashley Ebersole, general counsel at 0x and a former senior counsel at the SEC, told Blockworks in an interview that he expects both will speak more about the topic.

At this point though, the Trump-would-be-better-for-crypto narrative has “more substance to support it,” he said.

The former president in July made some promises at Bitcoin 2024 in Nashville and has said he would support American bitcoin miners.

That said: “Harris is new enough that her policy positions are still being built out in a lot of areas, not just in crypto,” Ebersole said.

Harris comes from a Biden administration that has shown “relative hostility” toward crypto, the 0x executive argued. President Biden vetoed a resolution set to invalidate the SEC’s Staff Accounting Bulletin (SAB) 121 and many believe SEC Chair Gary Gensler has treated the industry unfairly via his agency’s enforcement actions.

An adviser for Kamala Harris’s campaign, when asked about crypto, told Bloomberg News last week: “She’s going to support policies that ensure that emerging technologies and that sort of industry can continue to grow.”

“I would imagine both candidates will speak more [about crypto]; it just hasn’t happened yet on her side.”

How specific these candidates get on crypto-related policies prior to Nov. 5 could be key to attracting (or repulsing) a key voting bloc. Trump leads Harris by 12 points among likely voters who own crypto (50% to 38%), according to a Friday Fairleigh Dickinson University poll.

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Trump may not feel the need to offer more concrete crypto policy details unless forced to do so, Ebersole said — given his lead on this issue so far.

Still, he posted a video on X on Thursday indicating he would lay out a plan that afternoon to ensure the US is “the crypto capital of the planet.” It did not appear Trump released any such plan Thursday.

“If Vice President Harris were to come out and suddenly make a bunch of blustery statements about crypto and maybe even go a step further and say, ‘On day one I’m going to do X, Y and Z,’ then I think that would require a [fuller] response from the Trump side.”

The first presidential debate between Donald Trump and Kamala Harris is set for Sept. 10.

Industry watchers will be listening for a question about crypto. If not addressed explicitly, remarks about innovation or regulatory agencies more broadly could come up, Ebersole noted.

“We’re in a political campaign, so both sides can say whatever they want,” Ebersole said. “What they actually do if elected is obviously the key thing.”

Keep reading for more excerpts of Blockworks’ interview with Ebersole.

Blockworks: As it relates to crypto, what could we see from Harris or Trump if they are elected.

Ebersole: On the legislative side, the White House — under either Harris or Trump — [could] signal to Congress that it’s actively looking to work with them to get legislation passed that would lay down rules for the industry.

On the regulatory side … you could have something where it is White House silence moreover, but they stock the administrative agencies with agency heads … with a more crypto-forward approach.

Or you could see the White House be more full-throated under either candidate and lead their agencies toward a position like.

Blockworks: Senate majority leader Chuck Schumer said earlier this month during a virtual “Crypto4Harris” event that he is confident crypto legislation could pass by the end of the year. Your thoughts?

Ebersole: Talk is cheap and you can say a lot of things. Politicians essentially have a day job of saying a lot of things to a lot of different audiences and crafting their messages.

Actually taking actions is what will be the real catalyst here for a change in policy.

Blockworks: What are the main points regulators and lawmakers need to address to give crypto industry players more clarity?

Ebersole: [The Howey Test] is still largely a judgment call in terms of how those various elements are met. And it’s a judgment call that is extremely difficult for laypeople to make, whether or not they have legal advice.

You have judges who take completely different views on how Howey applies to certain crypto offerings. … I think that signals it’s an area that really can benefit from specific regulation of, ‘OK, we no longer have this subjective test; you are an investment contract if you do X, Y and Z, specific actions.’

In the industry generally, I think there’s a feeling of we tried to do everything right. …Our lawyer has told us they think there’s a defensible case that what we’ve done is the right thing, but is that correct? There’s not a check-the-box approach that you can take.

Financial regulatory agencies have applied regulations and legislation that was enacted for the traditional finance space and tried to shoehorn crypto into it. … That works sometimes, but oftentimes it raises as many questions as it answers.

Blockworks: OpenSea received a Wells notice from the SEC related to the NFTs on its platform allegedly being securities, according to CEO Devin Finzer. What do you make of this situation?

Ebersole: If this is now basically the fall of 2024 coming to fruition, the investigation and discussions have been going on for months at least, and maybe years. It’s difficult to know if this is a sort of last gasp of the Gensler SEC.

Almost certainly there will be a change in the SEC — just generally that turns over when the presidential administration turns over.

They’ve had prior enforcement actions in the NFT space. Where that goes from here is a little bit of an unknown now because the Wells process is not a public one. OpenSea is getting a little more public now … and maybe it’ll be like Coinbase and this will be litigated as much in public as in private and we’ll know more.

You could say it’s certainly a reason that while there might be some optimism that we’ll get to an improved regulatory and/or legislative position for the crypto industry in the future, that’s got to be cautious optimism at best with actions like these still being filed.

This interview was edited for brevity and clarity.

A version of this story was first featured in Blockworks’ On the Margin newsletter. Subscribe here to get news sent straight to your inbox.

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