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Why is this Cohen paying off Stormy Daniels with hush money so she doesn't hurt Trump's reputation for campaign an illegal campaign contribution?
I'm trying to wrap my head around how the actual spirit of the law was violated here. In a post Citizens United world I thought it was decided money is free speech (which I find astoundingly stupid and wrong), and effectively there's no such thing as too much money spent or proper use anymore, so long as certain bullshit forms are obeyed. If Cohen declared himself a PAC would he not be able to spend money on Trump's "mistresses" on his behalf? Is the special code words weren't evoked the problem? Frankly why can't trump pay off women as a campaign expense? What about a personal expense?
Politicians spend hundreds of thousands paying and being paid in wine and dine influence sessions, speech engagements, etc. all the time - as is my understanding. We all know this. It's not illegal. But a politician forwarding money to silence someone to protect his reputation is suddenly an unconscionable use of money in campaign/politics? Why?
Because it was undertaken with the purpose of influencing the election and in coordination with a candidate in that election.
If he had done so without any coordination with Trump then probably. PACs aren't supposed to coordinate directly with campaigns, that could be its own violation.
He arguably could pay them off as a campaign expense. If Trump had paid Daniels directly, out of either campaign or personal funds, that would likely have been legal. If Cohen made the payment and Trump reimbursed Cohen out of campaign funds that also might have been legal (it converts Cohen's campaign contribution into an operation expense). But if Trump did any of that he'd have to report the payment to the FEC, which he didn't want to do.
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.
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.
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):
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.
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