Former Commissioner of the Federal Elections Commission, Brad Smith, a preeminent expert on campaign finance law has taken to social media to lash out against the Manhattan trial that led to the conviction of former President Donald Trump.
Judge Juan Merchan had prevented Trump’s defense team from seating Smith as a witness or even submitting his testimony to the jury. Smith had planned on testifying that Donald Trump’s filing of a “hush money” payment as a “legal expense” was not a crime against federal elections law.
Indeed, federal prosecutors had passed up on the case prior to Alvin Bragg, the District Attorney in Manhattan, bringing the case by claiming that Trump had “falsified business records” in the furtherance of committing a crime. One of the implicit crimes that Bragg had left open as an option was covering up Trump’s alleged affair with an adult actress “Stormy Daniels” (Stephanie Cliffords) so that it would not negatively impact the 2016 election.
However, among the controversies in the case, beyond it hinging on serial liar and convicted felon Michael Cohen’s unreliable testimony, was that Trump had purportedly used “unlawful” means to impact the election.
Former Commissioner Smith put this notion to rest in a lengthy thread that he posted on social media. It is reposted in its entirety below (lightly edited for readability):
Let’s take a stab… Falsifying business records under NY law is a misdemeanor, unless done to hide a crime. Bragg says that crime was a violation of the Federal Election Campaign Act (FECA), or of a NY statute making it illegal to influence an election by “unlawful” means.
But if the latter, what is the “unlawful means?” An alleged violation of FECA. So it comes down to FECA. There are two potential violations here. One is acceptance of an unlawful contribution by the campaign. The other is incorrect reporting of a contribution by the campaign.
Either way, we have to have a campaign contribution. That allegedly occurred when Cohen advanced money to pay the Stormy Daniels settlement. FECA defines a contribution as any payment made “for the purpose of influencing an election.” The 2016 max legal contribution was $2700.
This looks bad for Trump–it’s pretty easy to conclude the payment was made to influence the election by buying Daniels’ silence, right? And Cohen paid Daniels $130K, way over the limit. Well, it’s not so simple.
1st, let’s clear up something. Cohen just loaned the money–he was paid back and then some. So where, some ask, is the contribution? But this is not a winner for Trump–under the law a “contribution” includes a loan, unless made in the ordinary course of business (e.g. a bank)
But, for context, note that there is no limit on how much Trump can contribute to his own campaign. By Oct 27, when Daniels was paid, Trump had already spent >$60 million of his own $$ on the campaign. It would have been easy for him to toss in another $130K.
Now, back to that definition of “contribution.” If they bought Daniels silence to “influence an election”–what the prosecution alleged–isn’t that a “contribution?” (And also a campaign “expenditure,” which mirrors the contribution definition?) Well, no.
1st, Common Sense. We know that a campaign expense is not literally any payment made “for the purpose of influencing an election,” and reading the statute that way would be WAY too broad. For example, in 1999, Bill & Hillary Clinton bought a house in New York.
One reason they did so was that Hillary could run for U.S. Senate from New York. In other words, the expenditure was clearly done, in part, “for the purpose of influencing an election.” Is it a campaign expenditure under FECA? Of course not. Common sense.
How about if a would-be candidate pays a lawyer to seal old divorce records, because he is afraid that, if revealed, they would be damaging to his candidacy. Campaign expense? No, clearly not–even though done “for the purpose of influencing an election.”
Or suppose a business owner wants to settle pending lawsuits against his business before running for Congress. He think the lawsuits are BS–but he’s afraid the press will make a big deal of the allegations. Can he pay the settlements with campaign funds?
The answer, obviously, is no–even though there is no legal obligation to pay them, and the settlements would be paid specifically to “influence an election.” In fact, in each of these examples, it would be unlawful to make the payments with campaign funds.
This is because FECA also prohibits using campaign funds for “personal use.” What is “personal use?” Under Federal Election Commission regulations–and the FEC has primary authority-for interpreting the law-it is any obligation that would exist “irrespective” of the candidacy.
Indeed the FEC regulations make clear that a mixed motive doesn’t make something a campaign expense-if the obligation would exist “irrespective” of the campaign, paying it with campaign funds is “personal use,” and therefore illegal.
Certainly Daniels used the campaign to pressure Trump and for the most $$ she could. The timing affected the *value* of her allegations, but the *obligation* did not exist because Trump was a candidate. It predated his candidacy, & was not created by him being a candidate.
Let’s use common sense. Is it a “campaign” expense to pay for a non-disclosure agreement for something arising out of events 10 years earlier, and not caused by the act of being a candidate? Is paying “hush money” a campaign expense? Duh, no.
And we wouldn’t want it to be. We don’t want candidates using campaign funds to pay personal expenses, whether new clothes, a weight loss program, or a gym membership (purchased to help the candidate look better, and therefore “for the purpose of influencing an election.”)
And certainly not to pay non-disclosure agreements to keep embarrassing info hidden. In summary, “for the purpose of influencing an election is an objective standard. The motive of the donor or spender doesn’t matter. So what are expenditures?
Paying campaign staff is a campaign expenditure. Buying ads for the candidate. Paying fundraising costs. Paying a campaign accountant. Paying for polling. Travel to campaign events. Basically, all the obligations you incur solely because you are campaigning for office.
The FEC’s approach is consistent with the U.S. Supreme Court, has consistently held, in every case since FECA was passed 50 years ago, that it’s definitions of “contribution” and “expenditure” must be objective, not subjective, to avoid being unconstitutionally vague.
After all, almost any political act or communication could be considered a “campaign contribution” or “expenditure.” Protesting “Genocide Joe” for Biden’s Israel policy? That could, and could have the purpose of, influencing this fall’s election.
If an environmental group advocates for green energy policies, is that a campaign contribution? Doing so could shape views on the issue, and so how people vote this fall–that might even be its purpose. Campaign contribution? Expenditure?
So none of these things violate FECA, even though they are what we would normally call “expenditures,” and even though done “for the purpose of influencing an election.” Again, its an objective standard. But none of this went to the jury, either as evidence or in instructions.
Instead, the jury heard only from Michael Cohen and the prosecutors, who claimed this was clearly a violation of FECA. In a second thread, I’ll explain why there was no FECA reporting violation.
The second thread is also posted below:
In another thread, , I explain why payments to Stormy Daniels were not a violation of the Federal Election Campaign Act (FECA). In this thread, I’ll explain why no FECA reporting obligations were violated, and why the prosecution’s theory makes no sense.
M. Cohen testified that Trump wanted to keep Daniels allegations under wraps until after the election. Prosecutors claim they therefore illegally did not report the campaign expenditure, and by doing so intended to, and did, have “the purpose of influencing an election.”
Presidential campaigns file monthly reports with the Federal Election Commission (FEC). These are filed on the 20th of each month, and cover expenditures and contributions for the prior month. So in 2016, the Sep. report was filed 9/20, and covered expenditures made in August.
The Oct. report was filed 10/20, reporting expenditures made in September. But after the October monthly report, the schedule changes. 12 days before the election, campaigns file a Pre-Election Report, covering expenditures up to 20 days before the election. /4
In 2016, the Pre-election Report was filed on October 27, covering expenditures made only through Oct. 19. The payment to Daniels was made on Oct. 27. So the payment would not have been reported on the Pre-election report.
The next report is the Post-Election Report. This covers expenditures made from 20 days before the election until 20 days after the election, and is filed 10 days after that. So this was the 1st report that would have included any expenditure to Cohen for paying Daniels.
In 2016, the Post-Election Report was required to be filed on December 8, one month after the election. So the prosecution’s theory, that Trump wanted to hide the expenditure until after the election, makes no sense at all.
Even if we assume, incorrectly, that it was a campaign expenditure, it wouldn’t have been reported until 30 days after the election. But again, none of this got to the jury, either through testimony or the judge’s instructions.
Merchan was rather obviously biased here, but I’ll give him the benefit of a doubt and say he was just thoroughly ignorant of campaign finance law, and had no interest in boning up on it to properly instruct the jury.
There was no illegal contribution or expenditure made, and no failure to report an expenditure. And even if we assume otherwise, the prosecution’s theory made no sense, suggesting no criminal intent.
I’m not a criminal law guy. But I do know campaign finance law. The failure to properly instruct the jury on the law would seem to be reversible error.
Donald Trump was found guilty in the Manhattan trial of 34 counts of falsification of business records and potentially faces prison time in his sentencing on July 11th.
The Trump legal team intends to file an appeal to the New York Appellate Court.
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