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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.
Notably, the Republican Party decided not to do this. Like, there weren’t competing slates of electors. Mike Pence had openly said he wouldn’t go along with that plan. The most partisan red state where Trump disputed the results had a state government- made up of all republicans- who told him to eff off. In fact, republican elected officials who could have turned it into a matter for the courts chose to admit trump lost. Not as a general rule, as a universal one.
I’ve yet to see even the smallest of small democrats opposing the lawfare, targeting of conservative groups, criminal cases invented out of whole cloth, attempts at censorship, etc.
What are the new legal theories embraced by the 6-3 majority on scotus? Name them. Their most controversial, and predictable, decision was dobbs, which even liberals mostly admitted would be legally correct. Pretty much all the precedent overturned by the changing balance of the court has been in the form of things like changing the constitutional test applied in x specific situation- hardly novel legal theories.
The closest thing to a novel legal theory pushed out of conservative courts would be kaczmyrak’s decision on mifepristone, which got stayed immediately and slapped down by scotus.
No it's not. The John Edwards case ran on the exact same theory.
Parts of the party refused to go along with that plan, sure. And they mostly got purged for disloyalty to the guy who spearheaded it.
Off the top of my head, the Major Questions Doctrine is one obvious example of a new legal theory adopted by SCOTUS. It's also highly likely they will be soon adopting a new legal theory in the area of administrative law, abandoning the current Chevron Deference legal theory. Again, I have 0 problem with them doing that, sometimes existing precedent is plain wrong and generally speaking I think the current court has made pretty good rulings.
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:
...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.
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.
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.
Nevermind that she used her husband's business, not her own, either. This case really doesn't hit the mark.
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