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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.
At least 13 financial institutions are being investigated for colluding with the federal government to spy on Trump supporters.
The post Nolte: Report Says 13 Banks Helped Feds Spy on Trump Supporters appeared first on Breitbart.
The Biden administration is proposing a new rule that would further entrench unelected federal bureaucrats from accountability to President Joe Biden or his elected successors.
Key to the new rule from the Office of Personnel Management is the effective “grandfathering” of federal employees into their current category of employment, making it harder for a future president to issue an executive order like the one that then-President Donald Trump signed in October 2020 to rein in the bureaucracy.
A rule listed in the Federal Register, like this one was Thursday, could be more difficult to overturn than an executive order because it would have to be reversed under the provisions of the Administrative Procedures Act, one former senior OPM official said.
“If such a rule were allowed to stand, it would tie a future president’s hands—at least temporarily—in carrying out his responsibilities to make and implement his policies,” said Robert Moffit, who was at OPM during the Reagan administration and is now a senior research fellow for health and welfare policy at The Heritage Foundation. (The Daily Signal is Heritage’s news and commentary outlet.)
The president cannot run the huge federal government from his office in the West Wing of the White House, Moffit told The Daily Signal.
Some career federal employees who have civil service protection are neither impartial nor nonpartisan, he added.
“To effect his policy, therefore, the president must not only have the ability to hire political personnel who will carry out his electoral mandate, but also remove career personnel who attempt to obstruct that mandate,” Moffit said. “So, any attack on any president’s capacity to carry out the policies upon which he was elected is fundamentally ant-democratic; it is an attack on the American people who elected him.”
Among other things, the OPM’s proposed rule would clarify that “the status and civil service protections an employee has accrued cannot be taken away by an involuntary move from the competitive service to the excepted service, or from one excepted service schedule to another.”
“Once a career civil servant earns protections, that employee retains them unless waived voluntarily,” the rule says.
In October 2020, just before the election he lost to Biden, Trump signed an executive order to create a new category of federal employee called Schedule F. Personnel in this category are in confidential, policy-determining, policymaking, or policy-advocating positions that remain on the payroll when a presidential transition occurs.
The executive order from Trump, who faced resistance to his policy changes from within the federal bureaucracy, gave agencies more flexibility and oversight for career employees in critical positions that affect policy.
Upon taking office in January 2021, Biden scrapped the Trump order. The final version of the new rule would make it more difficult for a future president to reverse, because it is a regulation published in the Federal Register rather than an executive order. Undoing it would require going through a time-consuming administrative procedure.
Career federal employees enjoy civil service protection, making it nearly impossible to fire them; by contrast, political employees serve at the pleasure of an elected president.
Career federal bureaucrats tend to be overwhelmingly Democrat-leaning based on their campaign donations; federal employee unions donate between 70% and 90% to Democrat candidates. Republicans have accused some career employees of blocking implementation of Republican presidents’ policies.
Project 2025, an initiative led by The Heritage Foundation that establishes a plan for the next conservative presidential administration, calls for restoring Trump’s Schedule F as part of a broader effort to rein in the federal bureaucracy.
This has been a long-standing policy goal for Heritage, Moffit noted.
“Respecting the president’s prerogatives to have the appointees necessary to carry out policies is one of the major reasons why former Heritage President Ed Feulner strongly opposed Republican attempts to hamstring Democratic President Clinton and reduce the number of his political appointees,” Moffit said.
“Political appointees can formulate the details of the president’s policies and see to it that they are implemented all the way down the chain through departments, agencies, subagencies, and bureaus of the federal government.”
Biden’s Office of Personnel Management issued the final rule Thursday, asserting it received 4,000 comments about it, and said the rule would be published Tuesday in the Federal Register.
“This final rule honors our 2.2 million career civil servants, helping ensure that people are hired and fired based on merit and that they can carry out their duties based on their expertise and not political loyalty,” OPM Director Kiran Ahuja said in a public statement. “The Biden-Harris administration is deeply committed to the federal workforce, as these professionals are vital to our national security, our health, our economic prosperity, and much more.”
According to the OPM press release, the new rule also would clarify that the phrase “confidential, policy-determining, policymaking, or policy-advocating” refers to positions that are noncareer, political appointments.
The rule also would establish procedural requirements for moving positions from “career” to “political,” and set up an appeals process for employees.
“Career officials are obviously crucial in the implementation of presidential policy,” Moffit told The Daily Signal. “Those of us who served in presidential administrations all have war stories, however, about how politically hostile civil servants, through various means, including intentional slow-walking or foot-dragging, can delay, thwart, or undermine the president’s policies.”
“A career civil servant who does not or will not carry out the policy of any president, regardless of party affiliation, should have the honor and the decency to resign,” he said. “They should not enjoy regulatory protection.”
The post Biden Protects Deep State Bureaucrats With ‘Anti-Democratic’ Rule appeared first on The Daily Signal.
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