FITZGIBBONS: Trump’s Alleged Payment To Stormy Daniels Was Perfectly Legal

Mark J. Fitzgibbons | President of Corporate Affairs, American Target Advertising, Inc.

With the Russian collusion probe by Robert Mueller appearing to be a nothing burger, the Trump Derangement Syndrome crowd has turned its focus to the plea deal with former Trump lawyer Michael Cohen and his confession about a campaign finance law violation.

The theory behind this crime is that Donald Trump and Cohen acted in tandem to influence the 2016 presidential election through payments and nondisclosure agreements to suppress claims of affairs between Trump and porn star Stormy Daniels and Playboy model Karen McDougal.

Cohen, who was facing serious and multiple charges of other crimes, pled instead to lesser charges that the payments for which he acted as an intermediary between Trump and the women were illegal campaign-related contributions.

This legal theory, however, is a corruption of the purposes of campaign finance law and lacks precedent — certainly as grounds for impeachment. President Trump rightly claims this was a private transaction outside the scope of campaign law violations.

Indeed, precedent exists that candidates may not use campaign funds for private legal matters. One simply needs to understand the purposes of campaign finance law to know that Cohen’s plea deal is not grounds to pursue Trump for any crime.

Political campaigns are tax-exempt under U.S. law. As with any tax-exempt entity, money raised by the campaign must be spent on the campaign’s tax-exempt purpose. Donors to campaigns don’t expect their contributions to be bundled to pay the personal expenses of the candidate, such as settling lawsuits not directly related to campaign.

Besides the issue of tax-exemption laws prohibiting personal uses of campaign funds, a case could even be made that a candidate has engaged in common law fundraising fraud when diverting campaign funds to settle personal litigation.

The basis for the law about these matters is found in the federal regulation at 11 CFR 113.1. What is and is not a personal expense is to be determined by the Federal Election Commission on a “case-by-case basis,” and the standard is whether the expense would exist “irrespective of the candidate’s campaign or duties as a Federal officeholder.”

Husband, father, billionaire businessman, and reality TV star Trump clearly would have reason to settle these tawdry matters irrespective of his run for office.

The Federal Election Commission on several occasions has addressed the use of campaign funds to settle lawsuits involving personal matters. In these instances, it has been the candidate seeking to justify the use of campaign funds to settle those cases, and the burden is on the candidate to justify the expense.

There is no obligation in the law for a candidate to use campaign funds to settle private lawsuits, and many private settlements are probably reached without using campaign funds, saving candidates from disclosing uncomfortable private matters to the Federal Election Commission.

Besides, the FEC does not always agree that campaign funds may be used to settle private legal matters. A well-known instance was when former U.S. Senator Larry Craig used campaign funds to pay lawyers after he sexually propositioned an undercover cop in a bathroom.

Writing for the DC Circuit Court of Appeals, Chief Judge Merrick Garland concluded “that the district court did not err in finding that [Craig’s campaign committee] unlawfully converted campaign contributions to personal use by spending them on [his] effort to withdraw his guilty plea.”

If payments to settle sexually based lawsuits must be treated as campaign-related, the more troubling issue is how Congress has used taxpayer money to reach dozens of undisclosed settlements, which came to light just last year.

The other legal angle that anti-Trumpers are pursuing is that the payments were not disclosed to the FEC. Here again, understanding campaign finance law shows such a claim to be without merit.

Since the 1970s when the Federal Election Campaign Act came to be, there has been plenty of litigation that campaign disclosure violates the First Amendment.

The gist of how these laws have survived First Amendment scrutiny is that they are useful in preventing the corrupting influence of money on candidates. Donations as quid pro quo, i.e., bribery, corrupt the political process. Even without bribery specifically at issue, courts have said there is a government interest in preventing the appearance of impropriety.

Payments by Trump on behalf of Trump are in no way a corrupting influence on Trump. There is no reason for them to be disclosed to the FEC.

This knowledge of law will not satiate the zeal of many who wish to put President Trump behind bars, but any attempt to prosecute him under these campaign finance theories would be irresponsible.

Mark J. Fitzgibbons is president of corporate affairs at American Target Advertising, Inc., America’s oldest and largest conservative direct marketing and fundraising agency.  He has litigated constitutional cases, and is co-author with Richard Viguerie of the e-booklet The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker. 


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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