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I continue to find Smith very puzzling. He outlines what the rules are:
Ok, so there's some specific things that can't be campaign expenditures. Presumably there's no specific exclusion for NDA payments, so we ignore those. And then there's a general rule to catch any other weird things that don't fall into the specific personal use buckets, and that's the "irrespective" test. Ok cool. So that's the rule?
Well no, because he then goes and highlights a couple of situations which clearly fall within the definition that he's provided but then he says nope, these don't count. Ok, why not? No explanation. Just "my personal belief".
I don't know what I'm supposed to do with that. Brad Smith's personal belief can't be the standard by which the law operates. There has to be some sort of actual standard, and the only articulated standard I've seen proposed says Trump is guilty.
Aaaand now you're getting us into the land of 'void for vagueness'. Brad Smith says that the FEC believes that there is an objective test here. He believes he understands that objective test. But we know that the standard by which the law operates can't just be any of our personal beliefs about the few words we have in the statute (not even the jury's personal beliefs). If it were that, then there is no way for an individual to know ahead of time, objectively, whether the actions they were thinking about taking were in the illegal bucket or the not illegal bucket. This is classic void for vagueness territory.
The way these things are usually handled in the administrative state is something something agency rulemaking, something something Chevron maybe. Before you get into the morass of trying to prosecute people for a bunch of impossibly vague statutes, an agency, in this case, likely the FEC, should go through the rulemaking process to try to interpret the ambiguity in a clear way so that people can be suitably informed. There's notice and comment procedures and everything that you have to go through to get this, but if you did, then it would basically be "the FEC's
personalinstitutionalbeliefsinterpretation" that would control. But we don't have that here. The best we have is a Democratic appointee to the FEC saying, "If the FEC had really gone through the process to make this abundantly clear, so that everyone knew that we were thinking that there was an objective test involved, then the result would be that this is not a crime." But we're stuck in a spot where the best that you can say against Trump is that they haven't gone through this process to put a full administrative interpretation out there. Not only is it classic void for vagueness in the absence of such an administrative interpretation, it heavily weighs against scienter, because Trump can't have intended to violate a standard that is only ex post knowable from your comments on an obscure website, the personal beliefs of a NY judge he's not met yet, or the personal beliefs of a jury which has not yet been convened.The hilarious part about this is that we have to get through 90% of all these other examples of, "No, the wording in the statute doesn't actually mean what it appears to mean, because [reasons]," many of which are at least reasonably spelled out by clear FEC interpretation or Court precedent if you've read enough. But at the end of all that, when we get to the final stage, we still have a thing that likely doesn't mean what the words in the statute appear to mean at first glance, again, for [reasons]. This is the reason why many people don't view this as a simple case of, "Trump broke the law; he's not above the law; he should be prosecuted just like anyone else." It's why the entire concept of the case is so troubling, and it's frankly the reason why they pursued it the way they pursued it. If you just shove all the mess of the core, vitally-important questions into a tiny box that you try to mostly ignore and swear that it's totally a crime if you don't think about it too much, but trust us it's totally a crime, without actually having to prosecute and prove that crime in an appropriately competent court with domain expertise and appellate review for the trickier questions, it all appears sketchy as hell.
Like I said at the outset, when this eventually hits appellate review, either in a federal circuit court or just at SCOTUS directly from NY's highest court, I think it's highly likely that it ends up resolved in Trump's favor. I'd probably say more 80/20 than 50/50. It likely won't be until after the election, unfortunately, likely because there are too many folks in the process with the capability and desire to slow-play it. And that really is damaging to democracy.
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