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PaperclipPerfector  4mo ago (text post)   23789 thread views

Culture War Roundup for the week of June 17, 2024

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The idea that trump reimbursing his lawyer for paying stormy Daniels to sign an NDA constitutes a misreported campaign expense is, however, totally a novel legal theory.

No it's not. The John Edwards case ran on the exact same theory.

I bolded the operative part that is completely different. Edwards did not pay for the expense out of his own pocket. Which is why when you later say:

Edwards' mistress was paid off in the same way that Daniels was paid off - Edwards got someone else to give her money.

...you're completely, 180 degrees, backwards. Edwards used somebody else's money. Trump used Trump's money, via an intermediary.

That's a factual difference, but it doesn't change the legal theory. Both cases hung on the idea that paying off the woman you cheated with is a campaign expenditure. If you concede that point, then the question of whether you get someone else to do it and then pay them back, or get someone else to give you money to do it, or get someone else to do it while the money never passes through your hands at all, is all pretty immaterial. All of those actions violate campaign finance law in some way, if and only if the payoff counts as a campaign expenditure.

This is just so wrong.

  1. You are using as precedent a case that is seen as a disaster for the government as precedent. It is precedent; just not the way you think it is (ie it turned the FEC and DOJ off of the theory you espouse).

  2. There is a big fucking difference between a presidential candidate funding his own campaign and a third party. The former has zero limits; the latter does. The latter could be criminal if it goes past the limit.

  3. If it were a campaign contribution, then the only thing Trump would’ve needed to do is report something in 2017. The prosecution’s theory is somehow the 2017 reporting stole the 2016 election. Time travel folks!

To point 2, that is correct. However, Trump did not pay off Daniels himself. Cohen did. The fact that he later reimbursed Cohen does not change the fact that Cohen made the payment on behalf of Trump, and that making a payment on behalf of a candidate is counted as a contribution to the candidate. There's no time travel involved, Cohen committed the initial crime during the election campaign. Trump later committed further crimes trying to hide the fact that he was paying back Cohen for committing that crime.

It's true that if Trump paid Daniels himself with no intermediary and reported the payoff as a campaign expense, there would have been no violation of campaign finance law.

if Trump paid Daniels himself with no intermediary

Could he have used a credit card?

Even if he were to write a cheque I suppose his bank is technically the one disbursing the funds -- so the only way to legally do it would be Trump hand-delivering a briefcase full of cash himself. Interesting theory!

Let me actually respond in a second post. For there to be a FECA criminal violation there has to be a willful violation.

So your theory of the case is that Trump knew he could do it entirely legally by paying Daniel’s directly, but by using an agent he would violate the law. He then enacted this crazy scheme in order to violate the law. Does that make any sense whatsoever?

Yep. He enacted the crazy scheme with the intention to conceal the fact that he had paid her off.

First, if hush monies are required to be reported, no one makes them. This gives a good reason to think “maybe it isn’t illegal” especially when the legality is heavily disputed.

Second you have the time travel issue since any reporting would’ve been after the election. So again it is hard to see how this impacted the 2016 election.

Third, how would Trump paying it directly conceal it less compared to Cohen? Since your argument is that Trump paying it directly reduces his liability you need to have a very good reason to argue why he did it indirectly since again willfulness is an element of the crime.

Yes but then you simply get back to “the report would have to be made in 2017l so still have time travel.

pretty immaterial

Negative. Your confusion comes from your explicit refusal to engage with the history of campaign finance laws, and the court cases that shape it. Most obvious in this setting is Citizens United, which narrowed the scope of the reasons which can ground regulation of these types of expenditures, to the extent that they can be considered expenditures (leaving aside this question for the moment and whether the FEC's current interpretation of the statute was actually informed by the failure to secure a conviction of Edwards), to only quid pro quo situations. Given this precedent, it is absolutely material whether there is a quid pro quo situation, and thus, a huge material difference between a candidate using his own money versus a candidate using someone else's money. It does not make sense to say that Donald Trump was entering in a quid pro quo relationship with Donald Trump by using his own money, whereas it is entirely plausible that the Edwards situation could be argued to constitute a quid pro quo.

We can reserve the question of whether it could count as a campaign expenditure in various hypos, as we discussed elsewhere. Suffice to say, the FEC of today disagrees with you, perhaps as I mentioned, in response to the Edwards debacle. The FEC might have agreed with you in the past, back then, but lots of developments have happened in the law since then, and at this point, they disagree with you.

Regardless of whether the legal theory is correct, the fact that it has previously been prosecuted demonstrates that it is not novel.

trump reimbursing his lawyer

I bolded it and everything. That part is absolutely novel. Prosecution for using your own money to pay for this sort of thing is absolutely novel. In fact, can you find an example of criminal culpability for any politician using his own money to pay for any sort of thing (not restricted to the case of hush money) that is in the broad class of "very questionable concerning whether it could be considered a campaign expense"?

As it so happens, such a case exists! Lisa Wilson-Foley hired John Rowland as a campaign advisor in her congressional race, but because she wanted to hide the fact she had done so (due to Rowland's own scandals) she disguised it by having him be employed by her husband's business. So the couple paid him with their own money, but because they tried to disguise it as not being a campaign expenditure, they broke the law.

Now, I grant that hiring a political advisor is a much more central example of a campaign expense than paying for a NDA. But the Lisa-Foley case demonstrates that it is not unprecedented to charge a politician for spending their own money on their own election, and the Edwards case demonstrates that it is not unprecedented to prosecute a NDA payment as a campaign expense. So neither aspect constitutes a novel legal theory.

in the broad class of "very questionable concerning whether it could be considered a campaign expense"

Nevermind that she used her husband's business, not her own, either. This case really doesn't hit the mark.

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