Hollywood Writers Go to War with Talent Agents

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Two Hollywood institutions, the Writers Guild of America (WGA) and the Association of Talent Agents (ATA), are now in an all out battle with one another. Consequently, the way in which business is conducted in the entertainment world may never be the same.

A dispute between the two organizations arose over the 43 year-old Artists’ Managers Basic Agreement (AMBA), a pact between the WGA and the ATA, which regulates the terms of how agents represent writers.

The WGA by-laws stipulate that an agency must sign the AMBA in order to represent one of its members.

Questions about the AMBA arose after a survey of WGA members found that Hollywood writers felt as if the major agencies’ practice of “packaging” was a detriment to their careers.

Packaging refers to an activity in which agents engage whereby there is a combining together of creative clients to benefit film studios, producers, and television networks.

Talent agencies used to rely primarily on a 10 percent commission rate as a revenue source. However, the practice of packaging provided a means in which larger agencies would be able to earn substantial additional revenue.

So-called packaging fees are charged separately and comprise an additional revenue source that is over and above the 10 percent commission; this additional amount of income is earned in exchange for bringing to a particular entertainment project a group of artists, e.g., writers, directors, and actors.

Additionally, the three biggest agencies, William Morris Endeavor (WME), Creative Artists Agency (CAA), and United Talent Agency (UTA), have spawned affiliate companies that participate in the ownership of content.

Writers contend that agents who package and gain an ownership stake have a conflict of interest, and they further assert that this conflict has caused writers’ earnings to decline.

The pursuit of packaging revenue places agents in a position of seeking deals that produce lucrative packaging fees rather than pushing for their clients to receive greater compensation.

When an agency owns and/or produces content, it places the agent in the dubious position of being an employer who is supposed to be representing the interests of an employee. This is a textbook case of a conflict of interest.

The growth of revenue streams for large talent agencies has attracted private equity investors and has even spurred some of the larger agencies to reportedly pursue the idea of going public. This has added more pressure as well as additional incentive to continue packaging and content ownership.

The agents that engage in such practices have actually made things worse through a lack of transparency, which has bred mistrust with their clients. Creators often had no knowledge that the content they had created was being packaged, with their agency generating a substantial amount of additional revenue off of their work. The agencies have acknowledged this error and have indicated that in the future they will be transparent.

The problem is that the damage has been done. Because the WGA and the ATA have come to an impasse in their negotiations, a tough-minded new talent agent code of conduct has been implemented by the writers union to end packaging and content ownership by agencies. The new code disallows any agent who represents a WGA member from receiving packaging fees and/or from working with agency-affiliated production companies.

WGA members have been instructed to disassociate from agents who do not comply with the new code of conduct. To this end, the union has provided members a DocuSign link with which they can send formal termination letters to agents.

These letters are now being sent out. Krista Vernoff, the showrunner on ABC’s “Grey’s Anatomy,” wrote an article for the Hollywood Reporter, which is titled “Why I Left My Agent, Despite the Sales Pitch.”

A sizable number of writers have taken to Twitter to announce their solidarity with the union by changing their profile pictures to icons that say “I Stand With the WGA.”

More than 800 writers have signed a statement of support and indicated that they “will only be represented as writers by agencies franchised by the Guild.” Most of the notable showrunners and TV creators that agencies desire to package have been visibly in support of the union.

The union has decided to play hardball with a new database for showrunners, where position openings are posted and writers may directly apply for work. It has put forth a plan for writers to be represented by managers and lawyers, as opposed to agents, although the ATA contends that the plan violates the law in California and New York.

Reportedly, the union has already drafted a lawsuit against the ATA and its member agencies, which would bring the battle to a courtroom on the East Coast or the West. The lawsuit will likely claim a breach of fiduciary duty by the agents who accepted fees from studios and allegedly failed to negotiate in good faith on behalf of their clients’ interests.

The outcome of this conflict will likely result in an entertainment industry realignment, whereby writers are represented by smaller agencies that agree to collect commissions, minus the packaging or content participation.

In a letter to members, the WGA described the significance of the big agencies firing in the following manner: “We know that, together, we are about to enter uncharted waters.”

Smollett Gets Hit with a Lawsuit as Chicago Seeks Justice

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Jussie Smollett may regret his failure to pay a bill sent to him courtesy of the City of Chicago.

After an extensive investigative process, a demand for payment was sent to the alleged hate crime hoaxer in an effort by the city to obtain reimbursement for costs incurred due to Smollett’s claims.

The letter gave the “Empire” actor seven days in which to pay an amount of approximately $130,000.

Smollett is refusing to pay the city anything, not a single solitary penny. He continues to publicly claim that he has been “truthful and consistent on every single level since day one,” despite the fact that one of his lawyers has already fundamentally altered the facts of his claims.

Smollett may be about to reap the whirlwind because of a civil lawsuit that the city of Chicago plans to file against him. Bill McCaffrey, a spokesperson for Chicago’s Department of Law, released a statement indicating that because Smollett “has refused to reimburse the City of Chicago for the cost of police overtime spent investigating his false report on January 29, 2019,” a civil complaint is in the process of being drafted.

McCaffrey commented that the lawsuit against Smollett will be filed “in the near future” and that the city will “pursue the full measure of damages allowed under the ordinance.”

A provision in the municipal code allows the city to file a civil action to collect the costs incurred when individuals make “false statements” to law enforcement and cause resources to be wasted.

The law also allows the city to go after the actor for “up to three times the amount of damages the city sustains” as a result of the violation. Consequently, if Smollett loses he faces a possible judgment of $390,000. In addition, the city can recover court costs and attorney’s fees, which could push the amount he could owe to over $500,000.

Smollett will soon realize that civil law differs greatly from criminal law, just as O.J. Simpson and Robert Blake discovered. Civil lawsuits pose grave problems even in cases in which criminal defendants are acquitted after a full trial.

In civil cases, the burden of proof is significantly less than that required of prosecutors in a criminal proceeding. The standard for the prosecution in a criminal matter requires evidence sufficient to prove the guilt of the defendant “beyond a reasonable doubt.”

In its civil lawsuit against Smollett, the City of Chicago is only required to produce a “preponderance of evidence” to prove that Smollett is liable for the amounts sought. This civil standard requires that the city prove Smollett is more likely than not to have arranged for the attack upon himself, for the court, in the form of a judge or a jury, to hold the actor liable.

The $130,000 may in hindsight look quite inexpensive to Smollett, especially after he sees the amount of legal costs for which he will be responsible in order to defend himself against the City of Chicago’s lawsuit.

The extensive civil litigation that the city’s lawsuit would create would open the actor up for a sworn deposition under oath with the penalty of perjury hanging in the balance.

Smollett and his attorneys continue to make public statements proclaiming Smollett’s innocence. However, Joseph Magats, a lead prosecutor in the case, recently said that he “does not believe” Smollett is innocent.

Perhaps the greatest risk for Smollett is that a court will come to a legal conclusion that it was he himself who staged the alleged attack upon his person, thereby cementing his place in history as a B-list hate crime stager.

Democrats Creep from Collusion to Obstruction

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In a cart before the horse scenario, Rep. Jerrold Nadler (D-NY), chairman of the House Judiciary Committee, stated with certainty that he believes President Donald Trump is guilty of obstruction of justice. Nadler declared this as his committee initiated an investigation to ostensibly determine whether or not the president obstructed justice.

Nadler’s panel sent out 81 document requests and subpoenas as part of an unprecedented partisan probe launched at a time it is widely believed that Special Counsel Robert Mueller is wrapping up his investigation and issuing a report.

Nadler, who has evidently come to a conclusion prior to his committee’s investigatory work, has also moved past the Mueller report, apparently amid concerns that it will contain no evidence of the supposed Russian collusion, which the Democrat Party and its allies in the left-leaning media have been obsessing over for more than two years.

Politico has cautioned those who are eagerly anticipating the special counsel’s report to “prepare for disappointment.”

Despite denials from certain members of the party, Nadler and his ilk are on an endless search for a rationale that they will be able to sell to the public so that impeachment of the president can be pursued and the 2016 election can be reversed.

“I think Congressman Nadler decided to impeach the president the day the president won the election,” House Minority Leader Kevin McCarthy (R-Calif.) said. “Show me where the president did anything to be impeached…Nadler is setting the framework now that the Democrats are not to believe the Mueller report.”

Nadler opined that the president is guilty of obstruction of justice, citing the “1,100 times he referred to the Mueller investigation as a ‘witch hunt.’” He additionally pointed to President Trump’s 2017 firing of then-FBI director James Comey.

“It’s very clear that the president obstructed justice,” Nadler stated.

Nadler’s determination prior to the investigation begs the question: Can a case be made against President Trump for obstruction of justice?

There are two serious impediments facing Nadler and other Democrats who are looking to impeach a sitting president using an obstruction of justice charge. The first impediment is the law and the second involves politics.

An analysis of the current facts results in a finding that there is no viable case for obstruction of justice. A sitting president who exercises legitimate constitutional power cannot be guilty of obstructing justice for merely acting on such power.

In this case, President Trump carried out tasks in which he is fully authorized to engage, using powers inherent to the office of the presidency and granted by the Constitution. These powers grant to the president the ability to hire and fire officials under his charge, including FBI Director Comey.

Even if the president had suggested a de-escalation of an investigation, as Comey alleged, this would not constitute obstruction, since the Chief Executive is, in fact, in charge of the executive branch of government.

Immediately after the president relieved Comey from his position, the former FBI director leaked copies of memos to the New York Times in which Comey had written that President Trump asked him to drop the investigation into then-National Security Advisor Michael Flynn.

The Comey firing was explicitly recommended via a memo from Deputy Attorney General Rosenstein to then-Attorney General Jeff Sessions, which stated, “Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives. The way the Director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.”

Obstruction of justice additionally requires a showing that the party who is obstructing possessed corrupt intent to interfere with, or had attempted to interfere with, the proceeding or investigation.

This means that the intentional aim of the interference is for self-interest.

Decisions made by a president that have arguable benefits for the people that the president serves are difficult for prosecutors to characterize as having the requisite corrupt intent.

President Trump’s decisions were arguably made to benefit the nation that his executive branch serves.

With regard to the tweets, presidents have a First Amendment right to express opinions. Moreover, the chief executive must freely express points of view as the leader of the executive branch.

President Trump’s tweets are not orders to those subject to his authority. They are instead expressions of ideas, thoughts, beliefs, and proposals to the people.

If President Trump had desired to interfere with the Mueller probe, he could have ordered it to be defunded, minimized, or terminated. Instead he chose to express opinions using his Twitter account.

Prior to taking the office of attorney general, William Barr penned a memorandum indicating that a president should not be prosecuted over conduct that is less than clearly serious criminality.

Does this mean that a sitting president cannot commit obstruction of justice? Of course not.

However, to commit a prosecutable offense, the occupant of the oval office would have to do something outside the scope of his constitutional authority, such as bribing a witness, threatening a judge, or destroying evidence.

Politically speaking, obstruction of justice, if used as a hedge for the lack of evidence of collusion, will likely result in a public perception that a significant gap had occurred between the original purpose of the investigation and the endgame.

President Trump’s Emergency Declaration Will Survive Lawsuits

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According to Rep. Adam Smith (D-Wash.), the new Chairman of the House Armed Services Committee, President Donald Trump possesses the lawful authority to use emergency powers to fund and build a barrier at the border.

In response to an interview question about the legality of the president’s recent emergency declaration, Smith told host of ABC’s “This Week” George Stephanopoulos, “Unfortunately, the short answer is yes. There is a provision in law that says the president can declare an emergency. It’s been done a number of times…” The congressman added that the president would be the recipient of a court challenge.

The lawsuit avalanche has just begun. More than a dozen states are filing suits challenging the emergency declaration. A case in point is the recent one declared by California Attorney General Xavier Becerra.

It is simply a fact that under existing law the suits should eventually lose when the U.S. Supreme Court ultimately gets the case.

Even Democrats such as Smith and various liberal legal commentators have admitted that President Trump has the statutory authority to declare the border crisis to be a national emergency, and he will therefore be able to adequately fund a border barrier.

The declaration by a president of a national emergency is nothing new. There have been 58 national emergencies declared since the National Emergencies Act of 1976 (NEA) was signed into law. Currently, there are 31 active national emergencies in effect. President Bill Clinton declared 17, and President Barack Obama declared 13 of them.

National emergencies exist today in remote places such as Yemen, Lebanon, Zimbabwe, Sierra Leone, Burundi, Myanmar, and Somalia. The current national emergency declared by President Trump deals with a crisis occurring on the U.S. Southern border.

The NEA was originally passed to rein in the authority of the president to use emergency power. The law requires the occupant of the Oval Office to renew declarations of emergencies annually, and it gives Congress the potential ability to terminate a state of emergency. Congress has routinely renewed most past declared emergencies without raising meaningful objections or litigation.

In order to terminate President Trump’s recent declaration of emergency, Congress must pass a joint resolution and submit it to the president for his signature. If the president were to veto the resolution, as President Trump would most certainly be expected to do, Congress would have to come up with a veto-proof supermajority to end the state of the emergency.

When Congress, via the NEA, granted the president the power to declare a national emergency, it did not define the meaning of the phrase. The power of any president to declare a national emergency ends up being very broad.

President Trump’s authority to do so does not arise solely from the NEA, though, but also from the presidential power to protect the nation and control the orderly process of entry into the United States.

Supreme Court precedent recognizes the power of the executive branch to control the admission and exclusion of foreign nationals and generally views this authority as mostly unsusceptible to interference by courts.

The funding for a border barrier has already been given the blessing of Congress via enacted legislation that was signed into law. The law of the land, as stated in the Secure Fence Act of 2006, is that a border barrier shall be built along the U.S. Southern border.

Democrats are alleging that President Trump’s emergency declaration is seeking to use an emergency as a means to obtain what Congress had refused to authorize. However, Democrats are evidently more than willing to have the judicial branch step in to end a declared emergency, rather than follow a law that specifically states how Congress is mandated to carry out the process of overriding an emergency declaration.

There was no mass rush to file lawsuits and no cries of abuse of power on the part of Democrats when President Obama, after stating that he did not possess the legal authority to do so, proceeded to bypass Congress after it refused to pass immigration reform. He simply created with a stroke of his pen a program that fundamentally altered immigration laws.

The former president additionally funded some significant parts of the Affordable Care Act, after Congress had denied him such funding. And he also funded the undeclared war in Libya, after Congress had turned down his funding request.

In is clearly apparent that Democrats are not concerned with the law, but rather they are in opposition to any kind of border barrier of which President Trump might be in favor. This is simply due to the fact that President Trump made the wall a centerpiece promise during his 2016 presidential campaign. Democrats have been relishing in anything they believe might harm him politically, and they continue to do so.

The ugly reality is that the primary reason Democrats are seeking to stop the construction of any type of border barrier is that barriers work, and they do not want anything to be implemented that might curb the mass migration of their would-be voters.

Jeff Bezos’s Extortion Claim May Go Nowhere

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Founder of Amazon Jeff Bezos, the richest man in the world, entered the political arena about six years ago with his purchase of The Washington Post.

American Media, Inc. (AMI) is the company that owns The National Enquirer, which is the media outlet that recently revealed Bezos was involved in an extramarital affair. The Enquirer story appeared a day after Bezos announced that he and his wife of 25 years were getting a divorce.

The story exposed Bezos’s affair with Lauren Sanchez, who is a former host of Fox’s “So You Think You Can Dance.” News of the affair changed public perception of Bezos, particularly with regard to his image as a CEO.

After suffering some embarrassment as a result of the story, Bezos unveiled a surprising blog post, which accused AMI of extortion. According to Bezos, in an email sent by the company’s lawyer, AMI threatened to publish texts and compromising photographs of Bezos, which included pictures of his male anatomy, if he did not publicly state that the tabloid’s reporting on his affair was not motivated by political concerns. Ironically, the lawyer who wrote the email is a former Amazon employee.

David Pecker is the CEO of AMI, and he is known to be an associate and friend of President Donald Trump. In the aforementioned blog post, Bezos made it a point to mention President Trump and cited ways that the president and Pecker had cooperated in the past.

Apparently, Bezos has been stung by the president’s tweets about his newspaper.

“It’s unavoidable that certain powerful people who experience Washington Post news coverage will wrongly conclude I am their enemy,” Bezos wrote. “President Trump is one of those people, obvious by his many tweets.”

Bezos has now put together a team of prominent lawyers and crisis managers to assist him in his public tug-of-war. The team includes high-profile figures such as Hollywood lawyer Martin Singer, who in 2005 represented Bill Cosby over potential Enquirer articles that detailed sexual assault allegations made against Cosby.

Attorney Jonathan Sherman, who previously represented AMI, is part of Bezos’s team and is with the law firm Boies Schiller Flexner. Partner of the firm David Boies defended Harvey Weinstein against sexual harassment and abuse accusations.

An additional team member is security specialist Gavin de Becker, who worked with public figures such as Olivia Newton-John, Cher, and former President Ronald Reagan.

If the email is taken at face value, it appears as though AMI’s lawyer offered to forego the publishing of material that would be embarrassing to Bezos in exchange for a public statement from Bezos that would benefit AMI. Based on a superficial read, the subject of criminal extortion has been repeatedly featured in media discussions.

Citing anonymous sources, reports have surfaced claiming that federal prosecutors are looking into the extortion claim.

The allegation in question is that AMI, via its lawyer, communicated to Bezos during settlement discussions that it possessed embarrassing texts and photographs, and conveying that if Bezos did not settle with AMI the company intended to go forward and publish the material.

The communication was made by a Deputy General Counsel for AMI and purportedly followed an email from AMI’s Chief Content Officer that had described in detail the texts and photographs.

In analyzing this email, it is important to focus on the context within which both parties are seeking to settle a dispute.

In settlement negotiations, it is common practice for the parties to propose that each side will release the other from any potential claims. This is what was communicated through its legal counsel in the subject email by AMI, along with a proposal that Bezos would agree to tell the public that AMI’s coverage of Bezos was not politically motivated. In return, AMI would agree not to publish the texts and photographs.

Outside of the settlement discussion context, criminal extortion would exist in a case such as this if money was demanded as payment for not making public an embarrassing secret. However, in this instance the key difference revolves around the settlement backdrop.

Why would the two sides be negotiating a settlement? It is clear that Bezos has been raising potential civil legal claims against AMI, while AMI has suggested that Bezos’s Washington Post planned to publish a false news story about AMI.

These cross assertions are arguably the basis for both parties to be pursuing a settlement of their respective claims. A settlement agreement would mutually release the claims of both parties.

Typically such agreements contain non-disclosure provisions stipulating that neither side will disparage the other, particularly when both sides are publishers. The argument of AMI as a criminal extortion defendant would be as follows: the texts and emails in question were an essential part of the settlement negotiations and were necessary to establish an incentive for Bezos to negotiate.

Prosecutors would have an uphill battle in attempting to use these facts as a basis for a criminal extortion case. Additionally, the First Amendment creates further problems for the prosecution, since Bezos is a very well known influential public figure and a power player in Silicon Valley, Washington, D.C., and Hollywood.

Since Amazon moved forcefully into the entertainment business, Bezos is often seen at award shows and red carpet events. His life choices can have an on one of the largest companies in the world and one of the most influential news outlets in the nation. Despite its inherent unseemly nature, this story is, in fact, a newsworthy one that most current news outlets would run with if given the opportunity.

Furthermore, in the Michael Cohen case AMI entered into a non-prosecution agreement with federal prosecutors from the Southern District of New York, agreeing to cooperate in exchange for not being subjected to prosecution. The agreement was conditioned on the company not getting into trouble legally for a period of three years.

Bezos’s team is well aware that, if it were determined that AMI broke the law, the company would potentially be in violation of the agreement. However, if there is no prosecutable crime, there seemingly would be no impact on the non-prosecution agreement.

Much of the analysis and reporting on the latest chapter in the Bezos saga illustrates the hunger on the part of many in the mainstream press for anything that can be weaponized against the president and used to ratchet down his poll numbers.

Jerry Seinfeld Sued over Sale of Alleged Fake Porsche

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Jerry Seinfeld has just been sued over claims that he sold a company a rare vintage Porsche Carrera sports car that allegedly turned out to be a counterfeit.

The lawsuit against Seinfeld alleges that when the comedian auctioned off the classic car for a winning bid of $1.54 million, he knew that it was “not authentic.”

Seinfeld’s lawyer, Orin Snyder, has denied the claims and called the suit “frivolous.”

An entity called Fica Frio Limited bought the vehicle in March of 2016 at an auction that took place in Amelia Island, Florida. Seinfeld himself was allegedly in attendance at the auction.

In a complaint filed in a Manhattan federal court, the car is identified as a 1958 Porsche 356 A 1500 GS/GT Carrera Speedster, which was sold at an auction that featured the “Jerry Seinfeld Collection” of cars. The lawsuit quoted Spike Feresten, who was the host at the auction.

Feresten also happens to be a former writer-producer for the “Seinfeld” television show and, as host at the auction, used a punch line that referenced the iconic sitcom.

“Jerry has been generous enough to let me drive an awful lot of his collection,” Feresten said. “And I can tell you: They’re real and they’re spectacular.”

Seinfeld’s current hit Internet show, “Comedians in Cars Getting Coffee,” displays his passion for classic cars combined with his love of stand-up comedy.

The auction summary of the Porsche indicated that it was “From the Jerry Seinfeld Collection” and was a “stunning example of a rare thoroughbred Porsche.”

The 1958 Porsche was marketed at the auction as “one of 56” with “lightweight aluminum panels,” according to the suit.

“This exceptionally rare 1500 GS/GT Carrera Speedster is surely among the finest restored examples of a highly sought-after four-cam Porsche,” the marketing material indicated.

Between 1955 and 1959, Porsche built 151 Carrera Speedsters, and less than 60 percent of the cars had the GS/GT trim that the plaintiff believed the car possessed.

According to the lawsuit, a year later in March of 2017, Fica Frio had the car evaluated by a Porsche expert who determined that it was “not authentic.”

The suit quotes a voicemail that Seinfeld allegedly left for the buyer in June of 2018.

“[I want to] offer my apology for this nuisance and assure you that you will be completely indemnified in full and not have to keep the car and get all your money back,” Seinfeld purportedly said. “I did want to apologize to you personally for that happening.”

The comedian allegedly added that his experts never suspected there was anything wrong with the car, according to the suit.

Seinfeld also purportedly said that he “would also love to know how your guys figured it out because…my guys did not I guess see anything amiss with the car when I bought it.”

Fica Frio claims that Seinfeld has not paid back the money, and the company desires to rescind the sale, giving the car back to Seinfeld, with the purchase price going back to the buyer. Perhaps even more important to settlement discussions, the lawsuit seeks punitive damages from Seinfeld, which in theory may be considerable.

According to Seinfeld’s attorney, “Jerry has been working in good faith to get to the bottom of this matter. He has asked Fica Frio for evidence to substantiate the allegations. Fica Frio ignored Jerry and instead filed this frivolous lawsuit.”

The attorney added, “Jerry consigned the car to Gooding and Company, an auction house, which is responsible for the sale. Nevertheless, Jerry is willing to do what’s right and fair, and we are confident the court will support the need for an outside evaluator to examine the provenance of the car.”

Determining the authenticity of vintage cars is not as cut and dried as it would appear. The vast majority of civil suits end in some sort of settlement between the parties.

In an interesting little twist, one classic episode of “Seinfeld” deals with a plot line that bears a resemblance with regard to the “authenticity” theme.

The George character on the TV show is about to purchase a 1989 Volvo sedan, but the car salesman talks him into buying a 1989 LeBaron convertible instead. The smooth talking salesman is able to get George to believe that the vehicle was previously owned by famed actor Jon Voight.

It turns out that the car was indeed owned by a Mr. Voight, who was not an actor but rather a periodontist, and happened to bear the same first name but with the alternate spelling of “John.”

As Seinfeld, via his attorney, attempts to obtain some leverage for the negotiation process, he might ask Jerry how George handled his bad “Voight” deal.

So-called Trump Campaign Finance Violations Are a Fallacy

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Democrat leaders and their allies in the media have momentarily dropped the Trump-Russia collusion narrative from their playbooks and are instead talking about purported campaign finance violations.

In fact, some Democrats such as Rep. Jerrold Nadler, D-N.Y. are attempting to characterize their latest campaign finance meme as constituting an impeachable offense.

To claim that the payments to adult film star Stormy Daniels and Playboy playmate Karen McDougal would be impeachable offenses, one would have to ignore both the law and historical practices.

During former President Barack Obama’s 2008 campaign, some real and arguably more serious violations of campaign finance law were treated as civil matters, resulting only in penalties paid to the Federal Election Commission (FEC).

According to the Washington Post, in 2008 Obama’s campaign allowed donors to use untraceable prepaid credit cards, which are capable of being utilized to evade campaign finance restrictions. Obama’s campaign additionally failed to employ basic verification and security procedures to prevent illegal donations to the campaign.

Years after the 2008 election, the Obama campaign paid a $375,000 fine, one of the largest ever levied against a presidential campaign but otherwise walked away from the violation. Impeachment was never a topic of discussion.

Despite claims by panelists on cable news shows, the current Trump campaign finance narrative contains serious flaws when it comes to the law.

According to the Federal Election Campaign Act, in order to constitute violations the payments to the two women would have to have been implemented “for the purpose of influencing any election for Federal Office” and not for a personal use.

The law stipulates that a personal use, as opposed to a campaign use, occurs when funds are “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”

President Trump’s company, which is branded with his name, his celebrity status, and his need to protect his family, all point to the personal component of the payments as opposed to a campaign related one. Moreover, the necessity for the payments preceded his announcement to run for president.

Former FEC Commissioner Hans von Spakovsky is in agreement, having told Fox News, “The blackmail threat by Daniels and McDougal to reveal their claims would exist whether or not Trump was running for office.”

Former FEC Chairman Bradley Smith told Fox News, “Even if it [the payment] was intended to have some influence on the campaign, that’s not the standard. The standard is: ‘Does the obligation exist because you’re running for office?’”

Smith wrote in the National Review that the president’s “alleged decade-old affairs occurred long before he became a candidate for president and were not caused by his run for president.”

As Smith noted, engaging in activities such as polling, purchasing ads, and printing bumper stickers are expenditures that seek to influence an election, however “paying hush money to silence allegations of decade-old affairs is not.”

In a somewhat similar but stronger case, which involved former presidential candidate and Democratic vice presidential nominee John Edwards, prosecutors attempted to prove that payments made during a presidential run were intended to assist Edwards’s electoral chances, claiming that they were made to protect his public image. Yet, in that case the prosecution could not persuade a jury that Edwards had made campaign related payments. After an acquittal of the main charge and a mistrial on other charges, the case was not pursued by the Justice Department, and Edwards was never retried.

Seeing a similar result with the case against President Trump, von Spakovsky wrote in a Fox News editorial, “Convicting Donald Trump of a criminal campaign finance violation will be extremely difficult, if not impossible. Just as Edwards was found not guilty, the same is likely to happen to President Trump if he is charged while he is president or after he leaves the White House.”

In a potential prosecution of the president, an additional problem involves evidence of the president’s mindset at the time the payments were made. The level of intent that must be proved in a campaign finance prosecution is that the alleged misconduct is committed knowingly and willfully, which is an extremely challenging element of the case for prosecutors, who must prove that a defendant intended to violate the law.

Because the Federal Election Commission does not consider payments made to a mistress to be an expenditure covered by the federal campaign law, it is not possible for a defendant to have made such a payment with knowledge that it was an unlawful violation.

In other words, the president cannot be charged with a knowing and willful violation of the law under these facts, since the Federal Election Commission and legal experts who served on the commission determined that such payments are not campaign finance violations in the first place.