President Donald Trump and First Lady Melania Trump greet guests at the Congressional Ball at the White House in Washington, D.C., December 15, 2018. (Mary F. Calvert/REUTERS)

Earlier today, Bradley Smith continued our conversation about whether Donald Trump’s hush-money payments violated federal election law. I say maybe — depending on the evidence. Unless I’m completely misreading Smith, he says no, hush-money payments cannot constitute criminal campaign-finance violations. Full stop.

To be very clear, as I acknowledge in my original piece arguing that Trump is in serious trouble, a judge may agree with Smith’s argument. There is no binding judicial precedent that is specifically on point. While I think it is meaningful that a federal judge permitted prosecutors to try John Edwards on a similar theory, I freely acknowledge that this determination does not bind a different court. I do believe, however, that the judge in Edwards’s case (and the prosecutors in the Southern District of New York) were following the natural and proper reading of the relevant statutes. Smith disagrees, and he’s no less than a former chairman of the Federal Election Commission. This debate is important. So let’s continue it.

I think I’ve located the crux of our disagreement in these paragraphs from Smith’s most recent piece:

[T]he Federal Election Commission passed regulations nearly 25 years ago clarifying that campaign funds have to pay for obligations that exist only because of the campaign. If the obligation was created “irrespective of” the campaign, it’s not a campaign expenditure. In adopting that regulation, the FEC specifically rejected a test that would allow campaign funds to be used for an expense that “primarily” benefited the campaign, precisely because it wanted an objective test that didn’t give politicians wiggle room to spend campaign funds for personal benefit. Any debt Trump owes to Daniels does not arise from his candidacy. I don’t think there’s much doubt that Daniels timed her request for money to Trump’s candidacy, when she thought Trump would be most likely to pay. And it is quite likely, to say the least, that the upcoming 2016 election influenced Trump’s decision on when and how much to pay. But as in all the examples I’ve given above, that doesn’t mean that the obligation to pay arose from Trump’s candidacy. Indeed, had Daniels thought Trump was going to win, she might have waited until after the election to make her demands. And had Trump never run, she might still have extracted a settlement at some point. The obligation was out there, irrespective of Trump’s candidacy.

But there was never (before the hush-money contract) any true “obligation” to Daniels at all. A person has an obligation to respond to lawsuits. They do not have an obligation to respond to hush-money demands. Thus, Smith’s statement that “any debt Trump owes to Daniels does not arise from his candidacy” gets ahead of the facts. It may well be the fact that the debt exists only because of his candidacy. An affair with a porn star does not create a “debt” of any kind. The debt was created by an agreement to purchase silence, and the agreement to purchase silence was (allegedly) a payment intended from the beginning to influence the election.

Let’s walk through the statute. First, as Smith notes, the definition of a campaign contribution is quite broad. It also includes an intent element. A contribution is “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office”(emphasis added). Because the definition is broad, both the statutes and the regulations contain a number of exceptions — categories of expenses that do not fit within the broad definition. None of those exceptions apply to the hush-money payments at issue.



Second, it’s also true that campaign contributions cannot be expended for “personal use.” That too has a statutory definition and encompasses “any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign or individual’s duties as a holder of Federal office.” Because that definition is also broad, the statute and regulations helpfully define multiple, specific categories of “personal use,” including mortgages, rent, clothing, tuition, and vacations. The regulations also indicate that “legal expenses” can represent a “personal use” (thus encompassing the lawsuit-settlement example Smith uses.) None of the personal-use categories defined in the statute or regulation encompass hush-money payments.

Third, to convict a person of a criminal campaign-finance violation, you have to prove that their violation of the law was “knowing and intentional.” According the Department of Justice, “This standard creates an elevated scienter element requiring, at the very least, that application of the law to the facts in question be fairly clear. When there is substantial doubt concerning whether the law applies to the facts of a particular matter, the offender is more likely to have an intent defense.”

So, if the evidence establishes beyond a reasonable doubt that Trump made the hush-money payments “for the purpose of influencing” the presidential election and not for “personal use” — and that he knew the law and intended to violate it — then he faces legal jeopardy. Hush-money payments can be made for personal use, but they are not inherently for personal use. Intent matters. And intent is defined by evidence.

One final note, Smith kindly points to my previous essays about the Wisconsin “John Doe” outrages, writing this:

David, of all people, should understand this. No one has written more, or more eloquently, about the abuse of campaign-finance law in the infamous John Doe case from Wisconsin. There, prosecutors conducted pre-dawn raids on homes, seized personal computers, cell phones, and files, and pried deep into every corner of their targets’ private lives, all because of their participation in Wisconsin policy debates. David reported on these investigations with a proper mixture of fact and outrage. But the basis for the John Doe investigation was precisely that which David defends here — the idea that any spending coordinated with a candidate “for the purpose of influencing an election” was a campaign expenditure, subject to the state’s campaign-finance regime.

But the conduct being investigated — as the Wisconsin Supreme Court found — was constitutionally protected issue advocacy. In other words, the prosecutor was using pre-dawn raids to investigate speech that enjoyed the “highest level of [First Amendment] protection.” Even in that case, the court drew a distinction between “express” advocacy — advocating for the defeat or election of a particular candidate — and issue advocacy. Express advocacy is subject to much greater levels of legal restriction (I disagree with SCOTUS on many of its campaign-finance rulings on this point, but my disagreement is irrelevant to their validity.)

Prosecutors carry a difficult burden of proof if they choose to pursue Trump directly, but the evidence will decide his fate. There is no legal safe harbor for payments of hush money that are intended to influence federal elections.