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Hilarious, especially because this story keeps changing, depending on where we are in the argument. Most people used to say that if Trump reimbursed Cohen out of campaign funds, that would have been illegal use of campaign funds. The FEC says that there is an "irrespective" test, and so if Trump would have wanted to keep Daniels quiet irrespective of the election (quite plausibly), one would even say that it would be illegal for him to pay her from campaign funds. How do you see significant daylight between "Trump pays Daniels directly out of his personal funds," and, "Trump pays Daniels indirectly out of his personal funds," for purposes of campaign finance law? Statutory cites would be ideal, but even an FEC interpretation would be interesting.
Like, surely there are plenty of hypos here where you would agree. Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge? Suppose Trump/Cohen were at a vendor, planning to complete a sale of a bunch of red TRUMP 2024 yard signs that Trump plans to distribute. Trump's plan is to pay for this from his personal funds, but he forgot his wallet, so Cohen pays for it, and Trump pays him back when they get back to his house. We have Supreme Court precedent that Trump is allowed to pay for election-related things from his personal funds. The FEC says very little about this, because they basically don't touch expenditures of personal funds by candidates. They have plenty to say about things like extending credit when you're paying it back via campaign funds (or a PAC), because that is directly about the use of campaign funds (or PAC funds). This is about personal funds.
To be clear, here are my thoughts on how this could have been structured lawfully. My reference is the FEC guidance on contributions and the FEC's definition of expenditures.
1. Trump pays Daniels himself. If Trump paid Daniel for the purpose of influencing the election it's an in-kind campaign contribution from the candidate to the campaign. The campaign has to report it in their FEC filings but this is otherwise legal. If Trump would have paid Daniel whether or not he was campaigning for president he doesn't have to report anything.
2. Cohen pays Daniels. If Cohen would have made this payment independent of the election (ignoring the crimes Cohen committed to get the money) it would be legal. If Cohen made this payment to influence the election I'm not sure there's any way to do it legally. The FEC guidance indicates individual in-kind campaign contributions can be converted into campaign operating expenses by reimbursement but also says they are considered in-kind contributions until the reimbursement happens. Since the contribution was way in excess of the limit it would seem to be an unlawful contribution from the beginning.
It depends on what is in the "indirectly." If the indirect payment involves someone else making an unlawful in-kind campaign contribution it would be a campaign finance violation (though not for Trump). Trump isn't charged with any campaign violations in the instant case anywyay.
If the lunch was a campaign expenditure and they did not report it or the amount was in excess of the legal maximum it could be a campaign finance charge.
If the initial amount of the payment was in excess of the legally allowable maximum for in-kind contributions I think this would be a violation as I describe in (2). If it were below that amount I believe Trump's reimbursement converts Cohen's in-kind contribution into a candidate in-kind contribution.
I'm already off the train here. I don't think this is true or supportable. Can you find any language to support this claim? Candidates are free to spend their own money, and it is not a campaign expense or contribution. Nor do I believe that there is any statute, guidance, or caselaw that would require this to be reported. EDIT: For example, if Donald Trump took a five dollar bill out of his own pocket, money that has never been given to the campaign, has never touched the campaign books in any way, it is his money from his own personal income, and spent it on a lawn sign that he puts on the lawn in front of his own house, I do not believe that this would trigger any reporting requirements. Do you agree/disagree?
Agreed.
Binding Supreme Court precedent says the opposite (unless you have something further that you meant to imply but didn't actually state). For example, I could take money out of my pocket right now and spend it on something that I think would influence the election (e.g., a lawn sign promoting a candidate), and that is absolutely legal.
What would make it a campaign expenditure? You need to spell out what the test is. Not an "if", because that is the precise question that I'm requesting an answer to and the crux of the issue.
There is no such thing as a candidate in-kind contribution. There can be campaign in-kind contributions (and PAC in-kind contributions for another example), but there is no such thing as a candidate in-kind contribution.
The FEC has a whole page discussing in-kind contributions to campaigns from candidates.
...
That is correct, but that's because there is a minimum dollar amount of $200 before candidate campaign expenditures become reportable in-kind contributions.
I should have clarified, if Cohen makes this payment in coordination with Trump and his campaign it is unlawful. If Cohen did this spontaneously, of his own volition, it would be no issue.
I did not have a specific hypo in mind but the FEC page on day to day operations gives meals as something that can conditionally be a campaign expenditure.
Bolded the key part.
Ok, so let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he put on his own lawn. Reportable? Criminal?
Aye, this again contributes to the claim that there is a distinction between a "campaign expenditure" and things that are not campaign expenditures. For example, Trump can take his campaign staff out to lunch and pay for it all using campaign funds, and this is a campaign expenditure. On the other hand, Trump can take his buddies from the golf course out to lunch and pay for it using his personal funds, and it is not a campaign expenditure... even if he thinks that this lunch has the possibility to in some way increase his chance of winning an election (e.g., he thinks that he will be incredibly charming and that they will be positively influenced to independently support his candidacy).
This is an obvious case where there is the possibility of mixed motives, which has been a huge thorn in the side of most arguments on several Trump-related topics. If Trump takes his golf buddies out to lunch, he may both have a motivation that they're going to like him and that it will increase their chances of doing business with him, so he has personal/business motivations. He may also have motivations that this same positive emotion might inspire them to support his candidacy. It is extremely difficult to tease these apart, which is why most of the rules try to avoid touching on these issues. They try desperately to avoid it (and they never bring such questionable cases, due to risk that SCOTUS will strike down larger swaths of campaign finance law than they would like), because there are obvious legal theory and constitutional issues. Even questions for things like lunches are a bit vague on this, likely precisely for this reason. Therefore, this is why they would have to build a case that the lunch is, indeed, a "campaign expenditure", but this requires facts, context, and argumentation. It's easiest and most clear to just identify the ultimate source of the funds - if it's coming from actual campaign funds, it's reportable. If it's not campaign funds, but a candidate took out all his campaign staff, in the same way that he would normally take them out and use campaign funds, but he used personal funds this time? Really hard case, though I doubt anyone would bring it unless they had a vendetta against the candidate. The candidate takes out his golf buddies, pays with personal funds, and maybe has some mixed motive that it might help his candidacy, too? Highly doubtful.
Now, put this in the context of the NY trial. We have at best for the prosecution a very murky federal law. We also have a murky NY law (are we sure unlawful means federally unlawful).
The prosecution offered zero evidence that Trump was thinking of either law let alone that Trump thought he was breaking either law and that hiding these internal records would help hide this alleged crime. Moreover, there is a standard in law that criminal statutes cannot apply if they are overly vague. When the FEC cannot agree on what the law is, then it surely cannot form the basis of a criminal conviction for state law purposes.
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Lunch was not bought for the purpose of influencing the election. Not that there's anything wrong with trying to influence an election, that's what campaigning is. But the campaign finance rules attach.
My reading of the law is it would depend how much the signs cost. A payment made on behalf of a candidate counts as a donation to that candidate, and as far as I can tell this is true regardless of whether the money is paid back later or not. So the question is whether or not the amount comes in below the threshold that Cohen is allowed to donate to Trump for campaign purposes.
You’ve ignored the mixed motives question which is the whole ball of wax here.
According to the jury instructions, the way the law handles mixed motives is as follows:
Citing that as the law is fucking hilarious. Dude is a lowly biased state trial judge. Scalia made the comment that FECA is the most highly complex law that is hard for SCOTUS justices to parse.
So here we have a biased judge who never in his life had to look at this law (ie is a complete noob) and who is a trial judge in general (ie not appellate and therefore not probably the best person to articulate the law) in one of the hardest areas in US law, but you are citing his fucking jury instructions as if that sheds any light on the law? Especially when a former head of the FEC (appointed by Bill Clinton) is saying otherwise.
I don’t know if you are doing that because you are just naive here because you’re Australian or otherwise but it just shows such a lack of knowledge.
I'm most certainly ignorant, so please, educate me. What is the governing case law on this topic, and how does it differ from Merchan's instructions?
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What about it being a loan from Cohen, instead of a donation? Does that work?
I don't think that makes a difference. Otherwise you would have a loophole where a billionaire supporter goes and "loans" his preferred candidate some enormous sum of money on "pay it back when you can (aka never)" terms.
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No. A payment made on the behalf of a campaign counts as a donation to that campaign. (This would be the case if the campaign reimbursed him from campaign funds.) Similarly, a payment made on behalf of a PAC counts as a donation to that PAC. (Again, this would be the case if a PAC reimbursed him from PAC funds.) This was a payment made on behalf of an individual, in his personal capacity. Please cite any statute or FEC interpretation that regulates this behavior as a criminal matter.
§30116(7)(B)(i):
The context of that is that it is a campaign expenditure. You’ve stolen a base assuming it is a campaign expenditure.
You should read what Brad Smith wrote about mixed motives and campaign finance law. Your view seems to be that subjective intent matters but then you create a wholly ungovernable and dangerous scheme for candidates.
Imagine there is a debate coming up. Candidate wants to look sharp so goes to buy a new suit. Well his motive is to look good for campaign purposes so should he use campaign funds? If he does, then he opens himself up to claims that he improperly used funds to pay for the campaign because after the debate he still has this fancy suit (ie there is a mixed use).
Let’s say his proud mother buys the suit for him. Did they run into a campaign finance problem because subjectively it was for the benefit of the campaign? Or was it? Was it just a proud mom having affection for her son and proud of where he was?
Let’s say the candidate is friends with Person X. X regularly has lunches with Y and Z and routinely brings other interesting people to lunch. X brings along the candidate because he wants Y and Z to vote for him but also thinks the candidate is interesting and it would make for an enjoyable lunch. X pats for the expensive lunch. Campaign contribution? If so, does the candidate have to pay for brunch with campaign funds? Now you created jeopardy in that case.
All of these hypos show why mixed motive cases should not be policed because they create untenable and unknowable catch 22 situations for candidates. It is why Brad Smith believes the rules are bright line.
So I think, much like the Colorado case you got dreadfully wrong, you aren’t thinking about the havoc your interpretation of the rules would wrought. Once you think about that, then it becomes clear it can’t be what the system was intended to do.
To be clear, this isn’t a resurrection of the church of the holy trinity. But it is asking in dense texts with hard to understand meanings “does this interpretation create such a crazy system that we don’t think ambiguous phrases should be constructed to lead to such a crazy result.” That is, it is a clear statement principle somewhat similar to the major questions doctrine.
My understanding is that the law says that if the expenditure would not have occurred but for the candidacy, then it is a campaign expenditure. If it would have occurred anyway, then it is not. So in reference to the Trump case, the question is if Cohen would have paid off Daniels if Trump had not been trying to get elected. Presumably, the jury was satisfied that the evidence showed he would not have.
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Ok, let's walk through a hypo to see why the FEC's guidance documents walk a tightrope between interpreting this in a way that lets them get at serious concerns and using this language in a more direct way that runs the risk of jeopardizing the entire edifice of the statute.
Let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he puts on his own lawn. Is that a "contribution to a candidate"? A "contribution to a campaign"? Reportable? Criminal?
I think it's reportable.
Then I think this is a good crux that we can focus on. I don't think we have a case on point, because I don't think the FEC is insane enough to bring a case on facts like these. I think they would face serious first amendment issues, especially in light of Citizens United. There, the Court made clear that the only grounds on which expenditure limitations (and, I believe, the corresponding edifice of distinctions that are being made to consider them in-kind contributions and the corresponding reporting requirements) can constitutionally rest are quid pro quo (trading expenditures->contributions for official acts), given the significant first amendment impacts. Even the Stevens dissent would have drawn the line at a more vague sense of corruption of the political process, perhaps most simply represented by his description of "whether objective observers can reasonably believe that elections (and the official acts that follow) are being bought and paid for". This would fail both tests. It does not make sense that Donald Trump is entering into a quid pro quo with Donald Trump in buying a sign for his own lawn with his own money. It does not make sense that Donald Trump is corrupting an election official or the official acts that he takes by buying a sign for his own lawn with his own money.
i don't think reporting requirements constitute any sort of expenditure limitation though. As I understand it, candidates can spend unlimited amounts on their own campaigns, they just have to report what they spent. I don't see how an obligation to document your campaign expenditures counts as an imposition on free speech.
Flippant response: Then you won't mind
publishingreporting all of your personal expenditures, right? I mean, you can still spend unlimited amounts of money on whatever you want; you just have to report what you spent. No one could possibly see how an obligation to document your expenditures counts as an imposition on free speech, right?Slightly less flippant response: It's kind of amazing, but the Court in Citizens United managed to not talk about reporting requirements at all. Like, they introduce the history of the case and say that CU was challenging the disclaimer, disclosure, and reporting requirements as well, but they literally never talk about the reporting requirements. It just disappears entirely. Almost like they were dodging the issue, so they didn't feel political pressure to falsely say that they were okay, instead perhaps coyly preserving an openness to address the issue later in a follow-on case. Diffusing the hits over time is tried-and-true Court Stuff.
Perhaps more concrete: Surely there are some bounds which contain these requirements. See McIntyre v. Ohio Elections Comm'n, for example. Perhaps the Court has to date avoided addressing the issue in context of campaign finance laws (again, hilariously coincidental that CU magically disappeared any discussion of reporting requirements), but this smells to me like it's just begging for a case. Let's say you and I got together, we conspired, hacked the source code of the universe, but only just a little. I, a totally random individual, but still presumably subject to independent expenditure reporting requirements, pulled some money out of my pocket and bought the most YUGEASS sign for my teeny tiny front lawn. Like, my lawn is so friggin' small, it can barely hold this sign. The sign definitely cost a few hundred dollars, triggering the reporting requirement. You got to pick the candidate that this sign supports. Together, our source code hack accomplishes one thing: it gets the FEC to bring an enforcement action against me, and that enforcement action is now in front of the Supreme Court. How do you think it goes? Does McIntyre v. Ohio Elections Comm'n figure into the picture somehow? How so?
(FYI, note very briefly that I currently rent, and do not own, the teeny tiny yard in front of the house that I rent. Passersby may be able to surmise, "Someone who lives there must really like this guy that Ashlael picked," but they wouldn't be able to use any public records to figure out who I am, unlike what would be the case were I required to publicly report it.)
Changing directions a bit, but bringing us back closer to Trump: the good news is that those reporting requirements, whether ultimately constitutional or not, are only attached to things that "expressly advocate" the election/defeat of a clearly identified candidate. But of course, what Trump did was very much not "express advocacy". So now, on top of that other bundle of issues with reporting requirements generally, we're going to have a slew of killer hypos pulling on this thread, too. Suppose Trump pulls two crisp Benjamins out, which happens to be just enough cash to place a "Blue Lives Matter" sign, not on his own lawn, but on a patch of land that cannot be connected to him, personally. He happens to think that this message will implicitly bolster support among people who are likely to vote for him in addition to just personally believing/liking the message and wanting to support the police. Reporting requirement? Criminal?
EDIT: Hell, we don't actually need to go all the way to Trump doing it. Could again just say that I, a random ass-individual, spent a few hundred dollars on a "Blue Lives Matter" sign (presumably because you picked it out; I don't think I'd ever do that otherwise), but let's immediately forget that parenthetical and assume that I did it because I thought it would implicitly bolster support for Trump and help Trump's election campaign. Reporting requirement? Criminal?
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