Reason: Ignorance Is Trump’s Excuse
By Jacob Sullum
Trump’s reimbursement, [Trevor] Potter explained, “would just make Cohen’s payment a loan to the Trump campaign,” and “federal law treats a loan to a campaign as a contribution, subject to contribution limits and disclosure requirements.”
Trump’s confusion on this point suggests he did not deliberately flout the rules, which is the difference between a civil and a criminal violation of the Federal Election Campaign Act (FECA). Nor is it clear that Trump needed to handle the Clifford payment the way he did to keep it hidden from voters: Another former FEC chairman, Brad Smith, suggests Trump could have reported the payment as a campaign expenditure under the boring heading of “legal services.”
Smith is not convinced the hush payment should have been treated as a campaign expenditure. While Cohen said he paid Clifford “for the principal purpose of influencing the election,” Smith notes that FECA prohibits the use of campaign funds “to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”
Even if paying Clifford helped Trump win the election, then, treating it as campaign expense would have been illegal unless it happened only because he was running for president. “At a minimum,” Smith wrote in a Reason essay, “it is unclear whether paying blackmail to a mistress is ‘for the purpose of influencing an election,’ and so must be paid with campaign funds, or a ‘personal use,’ and so prohibited from being paid with campaign funds.”
As the disagreement between Potter and Smith suggests, campaign finance law is complicated. Since even experts argue about what FECA requires, it is plausible that Trump, who shows little interest in fine points of law or policy, did not know.