Former Federal Election Commission chairman debunks pretext used for raid on Trump lawyer
Bradley Smith has thoroughly debunked one of the rationales for the seizure of attorney-client privileged communications in attorney Michael Cohen's office on suspicion of violation of federal election laws. One[i] of the allegations is that the hush money paid to Stormy Daniels amounted to an in-kind campaign contribution, far exceeding the amount permitted an individual to contribute. Smith demonstrates that this is nonsense in his Wall Street Journal column, titled "Stormy Weather for Campaign Finance Laws."
Campaign-finance law aims to prevent corruption. For this reason, the FEC has a longstanding ban on "personal use" of campaign funds. Such use would give campaign contributions a material value beyond helping to elect the candidate – the essence of a bribe.
FEC regulations explain that the campaign cannot pay expenses that would exist "irrespective" of the campaign, even if it might help win election. At the same time, obligations that would not exist "but for" the campaign must be paid from campaign funds.
If paying hush money is a campaign expense, a candidate would be required to make that payment with campaign funds. How ironic, given that using campaign funds as hush money was one of the articles of impeachment in the Watergate scandal, which gave rise to modern campaign-finance law.
When the FEC adopted these regulations, it specifically rejected a rule under which campaign contributions could fund an expenditure "related to" a candidacy. The FEC was concerned that would make it too easy for candidates to use campaign funds for personal benefit. Personal debts, for example, are "related to" the campaign – if unpaid, the candidate's reputation might suffer. A Rolex watch, a new suit, or a haircut might help a candidate look good on the trail.
This makes it clear that the payment to Stormy Daniels, which has many non-campaign justifications (for instance, concealing the purported affair from Trump's wife and children) cannot by law be paid by campaign funds.
This must be taken seriously, because Smith was not only a law school professor earlier in his career, but also chair of the Federal Election Commission that enforces campaign finance laws.
As a friend emailed me:
It appears that Mueller, the US Attorney from the Southern District, the senior Justice Department officials who apparently had to approve the raid, and the judge who issued the search warrant either do not understand the theory behind the campaign finance laws or have abused their authority in the same way as the electronic surveillance of Carter Page via the FISA court warrant did. It is a truly unbelievable situation. And this is with Republicans in power. The Deep State is for real.
I find the possibility that the U.S. Attorney's Office and judge did not understand the law highly unlikely.
[i] The other was "bank fraud" and "wire fraud" purportedly arising from the use of a home equity credit line – topics that deserve their own commentary.