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There are many reasons why legal experts are questioning the legitimacy of the criminal prosecution of former President Donald Trump. But the major reason is that the main claim in Manhattan District Attorney Alvin Bragg’s case—that Trump’s $130,000 settlement payment of a potential claim by Stormy Daniels was a campaign-related expense—is totally bogus.
Here’s a quick tutorial on why Bragg doesn’t have a legal leg to stand on—call it “Federal Campaign Finance Law for Dummies 101”—an apropos title, given what’s going on.
Daniels claims that she had a sexual encounter with Trump in 2006, fully 10 years before the 2016 presidential election, which Trump denies. For the payment, Daniels agreed to sign a nondisclosure agreement, which is a standard provision in many settlement agreements of personal injury cases and other claims.
Bragg contends that Trump falsified business records, a misdemeanor, when this payment was listed as legal expenses instead of a campaign expense.
Supposedly, according to Bragg, that converted the misdemeanors into felonies because Trump was concealing another crime. That other crime, according to prosecutors, is a violation of Section 17-152 of New York law, which makes it a misdemeanor to “promote … the election of any person to public office by unlawful means.”
Besides the fact that it’s very strange to allege that the commission of a misdemeanor for the purpose of covering up the commission of another misdemeanor is enough to allege a felony, the only plausible theory that Bragg is pushing for the alleged “unlawful means” was a violation of federal law by concealing a campaign-related payment.
With me so far?
But Trump was running for president. The raising and spending of money for campaigns for president and Congress is governed by federal law, the Federal Election Campaign Act, not state law. Any wrongdoing related to federal campaign financing falls under the enforcement authority of federal officials, not a local prosecutor like Bragg.
In fact, the Federal Election Commission, on which I served as a commissioner, has civil enforcement authority and the U.S. Department of Justice has criminal enforcement authority over violations of this law.
For the nuisance-value settlement payment to Daniels to fit within Bragg’s rickety legal structure, it would have to be a crime under federal law. In other words, it would have to be considered a campaign-related expense that was falsely reported under the Federal Election Campaign Act.
If you want an example of such a violation, just look at the $113,000 civil penalty the Hillary Rodham Clinton campaign and the Democratic National Committee agreed to pay in 2022. They listed the payments for the opposition research that formed the basis for the infamous Steele dossier, which fabricated the entire Trump-Russia collusion hoax, as legal expenses instead of opposition research.
But opposition research on the opposing candidate is obviously a campaign-related expense under applicable federal law, so the FEC had authority to investigate and enforce the law against this deception.
That’s not the case with the Daniels’ payment. For starters, the incident in question that led to the payment is alleged to have happened 10 years before the 2016 campaign. More importantly, the payment fails the test the FEC applies to determine whether an expense is campaign-related.
Under federal law and corresponding regulations, the FEC applies the “irrespective test” to “differentiate legitimate campaign and officeholder expenses from personal expenses.” As the FEC explains on its website, under the irrespective test, “personal use is any use of funds … to fulfill a commitment, obligation, or expense of any person that would exist, irrespective of the candidates’ campaign.”
In other words, if the expense would exist even if the individual were not a candidate, then it’s personal and not a campaign expense.
The payment to Daniels clearly fails that test. Trump was a celebrity long before he ran for office, and celebrities get these kinds of nuisance claims all the time. In fact, the prosecution’s first witness in the New York case, David Pecker, said he had helped settle similar claims to avoid legal costs and embarrassment by suppressing stories for numerous other celebrities, including Arnold Schwarzenegger and Tiger Woods.
The easiest way to understand this test is to take the example of a personal injury claim.
Candidate A has a car accident several years before he runs for Congress that injures another driver. After the campaign has started, the candidate decides to settle the personal injury claim made by the other driver by paying that driver $130,000 in exchange for a nondisclosure agreement.
Settling and paying the claim may help the candidate in his campaign by avoiding personal embarrassment. But that doesn’t make it a campaign expense. It’s a claim that would exist even if the candidate were not running for office and is thus considered a personal expense under federal law.
Daniels’ claim is also a personal claim that existed long before Trump ran for the presidency and, given his celebrity status, would have continued to exist even if he never ran for president.
That’s no doubt why neither the FEC nor the Justice Department ever filed an enforcement action against the Trump campaign or Trump personally over the payment; specifically, because it was not a campaign-related expense.
You know what would have led to enforcement actions? If Trump had actually claimed this was a campaign-related expense and had used campaign funds to make the payment, I have no doubt he would have been prosecuted by the feds for the illegal use of campaign funds to pay a personal expense.
That’s what former Rep. Jesse Jackson Jr., D-Ill., went to prison for after he pleaded guilty in 2013 to spending $750,000 on personal expenses.
Keep in mind that Bragg’s entire manufactured case of 34 counts of falsifying business records depends entirely on the legitimacy of his contention that the settlement payment should have been listed as a campaign-related expense.
It shouldn’t because it wasn’t.
And all of the other testimony from the prosecution’s witnesses about this payment and other settlement payments that are obviously intended to blacken the character of the former president and prejudice the jury doesn’t change the fact that none of these payments were campaign-related expenses. Period. End of story—or at least it should be.
The post Trump’s NY Prosecution Is a Bogus Case by a Bogus Prosecutor appeared first on The Daily Signal.
I can’t tell you how many people I know who do not like former President Donald Trump yet nonetheless smell prosecutorial overreach in Manhattan.
Manhattan District Attorney Alvin Bragg has charged the former president with 34 felony counts of falsifying business records. Trump has pleaded not guilty.
The case began with Michael Cohen, Trump’s onetime fixer, making a “hush money” payment to the former adult film actress known as Stormy Daniels to keep her from revealing information about an alleged sexual relationship with Trump in 2006. Bragg used the fact that Cohen paid $130,000 to Daniels in 2016, when Trump was running for president, as a pretext to turn a moldy misdemeanor offense into a felony.
But is it even illegal? This trial showcases something rich men and big corporations have been doing for years—paying off mistresses or wronged staffers with cash settlements with little public scrutiny, thanks to nondisclosure agreements.
I don’t like it, but it’s not a crime.
On Tuesday, former National Enquirer publisher David Pecker testified that during a 2015 meeting in Trump Tower, he told Trump, Cohen, and campaign stalwart Hope Hicks that he wanted to help the Trump campaign, if behind the scenes.
What followed was “catch and kill,” the term for the scheme of paying to get dirt on a public figure, then killing the story, as happened with another alleged Trump gal pal, Karen McDougal. The National Enquirer paid her $150,000 for a story that never ran.
Trump has denied that anything extramarital occurred with McDougal and Daniels. But as Sen. Mitt Romney, R-Utah, told CNN, “You don’t pay someone $130,000 not to have sex with you.”
Back to Cohen. He’s a flawed witness to be sure, who in 2018 pleaded guilty to charges that included tax evasion and lying to Congress when he testified about Trump, his former master. Cohen was sentenced to three years in prison.
Then, last year, Cohen claimed that he lied when he admitted to tax evasion. A more careful prosecutor would not hang a case on an accomplished liar.
Given his capacity for self-pity and self-sabotage, it’s no surprise that Trump told reporters after the second day of trial, “I’m not allowed to defend myself.”
Trump also continued to throw shade at Judge Juan Merchan, whose gag order, Trump maintained, robbed him of his “right to free speech.” Trump also offered that Merchan “should recuse himself.”
Pecker testified that he was glad to help by running “positive stories about Mr. Trump,” as well as negative stories about his campaign rivals. I’m guessing many Big Media hotshots feel the same way—about President Joe Biden.
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The post Trump Faces 34 Felonies at Trial. But Was There a Crime? appeared first on The Daily Signal.
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