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.