MESSAGE
| DATE | 2023-04-02 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [Hangout - NYLXS] Trump indictments
|
Trump Indictment Is a Perversion of Campaign-Finance Law
If a candidate has to pay for his own clothes, surely hush money is
likewise a personal expense.
By Bradley A. Smith
March 31, 2023 6:13 pm ET
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Donald Trump speaks at the Conservative Political Action Conference in
Oxon Hill, Md., March 4.
PHOTO: ALEX BRANDON/ASSOCIATED PRESS
In choosing to convene a grand jury to pursue the Donald Trump-Stormy
Daniels affair, Manhattan District Attorney Alvin Bragg faced two big
problems—one political, one legal. The indictment of Mr. Trump will
address the first, likely at the expense of the second.
To recap how we got here: Ms. Daniels, a pornographic film performer,
alleges she had a fling with Mr. Trump in 2006, nearly a decade before
he entered the Republican primary for president. Once Mr. Trump became a
candidate, Ms. Daniels began demanding money in exchange for her
silence. Mr. Trump obliged, and his company, the Trump Organization,
sent $130,000 to Ms. Daniels through Mr. Trump’s personal lawyer,
Michael Cohen. The expense was apparently recorded on the company books
as “legal fees,” which the indictment is expected to allege was a
falsification of business records.
Mr. Bragg’s political problem is that this charge is chump change,
merely a misdemeanor under New York law. To ratchet it up to a felony
indictment, the district attorney has to show, among other things, that
the falsification was designed to conceal another crime. That crime is
believed to be a campaign-finance violation—an illegal corporate
contribution by the Trump Organization to the Trump presidential
campaign—which the false business reporting was meant to conceal.
Here’s where Mr. Bragg’s legal problem comes in: Was the hush money a
campaign contribution? The governing statute, the Federal Election
Campaign Act, provides that a contribution is any donation made “for the
purpose of influencing any campaign for federal office.” The Trump
Organization, says Mr. Bragg, paid Ms. Daniels to prevent revelations
that would have hurt Mr. Trump’s presidential campaign. Thus the
payments were “for the purpose of influencing” a federal election—and,
since corporate contributions to a campaign for federal office are
illegal, the case is closed.
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Not so fast.
The Supreme Court has repeatedly held that because campaign-finance laws
infringe on core First Amendment activity, they can’t be dependent on
vague, subjective interpretations. Accordingly, the clause “for the
purpose of influencing any federal election” is an objective standard.
As another section of the statute states, an obligation isn’t a campaign
expenditure if it exists “irrespective” of the campaign. In other words,
campaign funds pay for campaigning—the campaign manager’s salary, ads,
campaign travel, venues for rallies, polling and so on. They don’t pay
for personal expenses not created by the act of campaigning, even if the
candidate intends for them to benefit the campaign.
The statute’s objective nature is demonstrated by a noninclusive list of
things that campaign funds may not be spent on no matter how much they
might benefit—or be intended to benefit—a campaign. For example, if a
candidate wants to look good in a debate and purchases a $4,000 suit he
would never have bought if he weren’t running for office—that is to say,
he buys it with the subjective intent to influence an election—it still
can’t be purchased with campaign funds, because he would have to buy
clothing anyway. A country-club membership can’t be purchased with
campaign funds, no matter how much the candidate intends for it to
benefit his campaign by giving him a place to schmooze donors.
Candidates with substantial business interests, such as Mr. Trump, will
frequently find themselves facing lawsuits—some merited, some not. If
such a candidate were to instruct his company’s legal counsel to settle
them, the settlement payments would, subjectively, be made “to influence
an election.” Legally, however, such payments couldn’t be made with
campaign funds and would have to be made by the company or the candidate
personally, because the underlying obligation wasn’t created by the act
of campaigning.
These restrictions on converting campaign funds to “personal use” may be
the one meritorious part of our complex, often destructive system of
campaign-finance regulation. They define the difference between
bribes—donations for the candidate’s personal benefit—and campaign
contributions. Who really thinks that a candidate can—let alone must—use
campaign funds to pay hush money for past affairs, and who knows what
else? But that’s what Mr. Bragg’s theory would require.
In other words, the “crime” that Mr. Bragg claims is being covered up
isn’t a crime at all. Worse still, one is left with the distinct
impression that if Mr. Trump had used campaign funds to pay Ms. Daniels,
Mr. Bragg would be alleging that the underlying crime the business
records were intended to cover up was the illegal conversion of campaign
funds to personal use. This is a classic Catch-22 that undermines the
rule of law.
Mr. Trump has a remarkable ability to make both his ardent supporters
and his ardent critics abandon long-held principles for short-term
satisfaction. If Mr. Bragg is somehow able to make these charges stick,
it will betray fundamental tenets of campaign-finance law and those who
believe in the rule of law.
Mr. Smith is chairman of the Institute for Free Speech and a law
professor at Capital University in Columbus, Ohio. He served as chairman
of the Federal Election Commission in 2004.
--
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that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
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