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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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