10

There has been recent news about President Donald Trump possibly breaking campaign finance laws due to a repayment made to one of his lawyers.

If the President has actually violated campaign finance laws, what can happen? Does it even matter since he is already the US President?

19

Let's start with the most important point first:

A campaign finance violation is not a ground to remove an elected official from office, no matter how egregious, on its own, even if one could prove that the campaign finance violation probably caused the outcome of an election to change.

Congress could decide, however, that a campaign finance violation constitutes a "high crime or misdemeanor" for which a sitting President could be impeached, if a majority of the House of Representatives votes to impeach the President and a two-thirds majority of the U.S. Senate trying the impeachment under the supervision of the Chief Justice of the United States (that and not "Chief Justice of the United States Supreme Court" is the official title) finds that the offense set forth in the impeachment has been committed and constitutes sufficient grounds to remove the President from office.

At the outset, there is some ambiguity over whether the violation of campaign finance laws would have been by individual person, or the political campaign of the individual person (which is a Section 529 non-profit organization).

The individual or the campaign, as the case might be, would definitely owe either civil or criminal fines, as the case might be, for a violation of the particular campaign finance laws that the individual or campaign is alleged to have violated. The violation could also affect the ability of the violator to obtain all or any amount of federal matching funds in a future election.

Depending upon the particular campaign finance law involved, which isn't clearly specified, there might be a criminal penalty (either a misdemeanor or a minor felony) as well, which could give rise to a probation sentence, a sentence to some period of incarceration, a period of post-release parole, criminal fines, court costs, and, at least in the case of a felony, some collateral consequences of that conviction such as a prohibition on owning a gun and ineligibility for many occupations and jobs.

Neither a civil campaign finance violation, nor a criminal conviction for a campaign finance violation, disqualifies someone from holding the office of President.

The President does not have immunity from civil or criminal consequences of campaign finance violations committed prior to taking office, and the President's campaign, at a minimum, is not immune to campaign finance violations at any time. Presidential immunity from liability is limited to the conduct of the President while holding the office in furtherance of the governance duties of the President.

Generally speaking, campaigning would not be a governance duty of the President, but there are factual circumstances under which it is hard to distinguish between what constitutes governing and what constitutes campaigning in the case of a sitting President who is currently in office.

Also, campaign finance violations can't be prosecuted by just anyone. A violation of federal campaign finance laws must be prosecuted by a federal government lawyer authorized to do so by the Federal Election Commission (FEC), which has an even partisan balance of members by design and almost always deadlocks on motions to prosecute anything but the least controversial and most blatant campaign finance violations against members of either of the two major political parties in the United States. A "private attorney general" can't bring a lawsuit to enforce campaign finance laws unilaterally.

The President can definitely pardon a criminal violation of a campaign finance law by anyone other than himself. The President definitely cannot pardon a civil violation of a campaign finance law by anyone. The majority and more analytically sound position is that the President cannot pardon himself for his own criminal violation of a campaign finance law (there are prior questions and answer at Law.SE regarding that question).

A judge considering a campaign finance violation charge against a sitting President could, however, take steps short of dismissing the charges that could accommodate a sitting President.

For example, the judge could be very deferential to the President in setting hearing dates, allowing the President to participate in proceedings by telephone or (in some but not all cases) through a representative, or in setting the amount of a bond or the terms of pre-trial release in the event of a criminal charge, or in cooperating with the President's security detail when the President is required to appear. In a civil violation case, the President would probably be allowed to be a deposition witness, with the deposition testimony used at trial, rather than appearing in person at trial, if his lawyers requested that treatment.

  • 1
    This President has already filed to run for re-election. If his 2016 campaign violated the law, could that have any legal effect on his 2020 campaign, or are they considered totally separate entities? – Kevin May 4 '18 at 2:19
  • @Kevin Good question. I don't know the answer. – ohwilleke May 4 '18 at 4:03
  • 2
    @Kevin: The Obama 2008 was hit with a campaign finance violation charge for a transaction of $1.8 million dollars it failed to report. The campaign was fined $375,000 and it did not affect his election in 2012. Keep in mine, the value of money not reported in the Obama campaign finance violation is more than 10 times larger than the Stormy Daniels payout $130,000 that is under question at time of writing. – hszmv May 4 '18 at 14:43
6

Technical violations can result in fine imposed by the Federal Election Commission. They provide this booklet, and these regulations are applicable. This regulation spells out how the fine is computed. The Dept. of Justice will handle any criminal accusations, and here is their handbook. To be criminally prosecutable, the act must be done knowingly and willfully. According to DOJ, this could be up to 5 years in prison. There are other associated federal crimes implied (but not entailed) by willful non-disclosure: perjury, conspiracy to impede, false statements, obstruction of investigation, which could make the penalty longer. See chapter 5 of the DOJ handbook for a detailed analysis.

There is no provision for direct non-electoral removal of a president for such a conviction, but even without an actual conviction, Congress has the (sole) power to impeach and remove a president, and the rules are only refer to "high crimes and misdemeanors", which is not precisely defined. The Clinton impeachment bill is here for comparison.

  • I agree with everything in this answer as far as it goes. I touch upon some additional issues in my answer. – ohwilleke May 3 '18 at 16:44
  • 1
    I recall reading that the Obama Campaign was found to have violated some finance laws as well, and were fined for it... and nothing further resulted. So at the time, it wasn't a big deal that warranted impeachment. But as I answered eslewhere, Impeachable is whatever Congress says is Impeachable and need not follow precedence. – hszmv May 3 '18 at 19:28
  • 1
    @hszmv There may also be distinctions here regarding the President's (direct) involvement. I don't recall Obama ever being implicated as being directly involved in the violations in question. We have at least some indications now, in the form of Cohen's guilty plea in court, that Trump was directly involved in some violations. While that implication has not been tested in court or Congress, that would be a major legal difference if true. It's still up to Congress to decide if they care, though. – zibadawa timmy Aug 22 '18 at 10:39
  • @zibadawatimmy: From my understanding of the crime that Cohen plead guilty of, at Trump's orders he payed of Stormy than billed the campaign for different services for that particular payment. The case against Trump would hinge on Trump knowing that Cohen intended to bill the campaign, which may be difficult to prove as Cohen may have billed the campaign for legit charges in addition to these fraudulent charges. Still, Impeachment is a congressional matter and completely up to congress. – hszmv Aug 23 '18 at 15:17
1

What would happen...? is the question. First, it would have to be determined if a law was broken and what it was.

There are two main possibilities. The one being a reporting violation. One can say it was a private transaction not connected to the campaign. No need to report anything.

If, and it's a big if, it could be shown that the sole purpose of the hush money was to enhance the campaign (nothing personal), then it could possibly be construed as a campaign contribution. If so, and the money came directly from Trump, still no violation because the candidate has no limits, but the money would still have to be reported the FEC.

If the money came from Cohen personally, as he originally stated, then the campaign broke the law by accepting more then max contribution by an individual of $2,700 and not reporting it. If Cohen contributed this money through his corporation then again the campaign broke the law prohibiting corporate donations and not reporting it. Again, if it was determined that the payment was a contribution, then the failure of the candidate to report it, regardless of how paid, was a reporting violation.

The most serious charge, not connected to reporting and contribution limits, would be if it could be proven that the candidate and Cohen conspired in some fashion to hide the fact this was a reportable campaign contribution and/or they exceeded campaign contribution limits. A conspiracy would be a serious charge against Trump, Cohen and anyone else involved.

So, the nature of the payments in question has not been legally determined yet, by any judicial authority, as a campaign contribution. Until then, no possible crime could be committed.

If, after a determination that it was a contribution, then the failure to report and accepting illegal contributions would have to be dealt with. Not an unusual campaign problem. Obama's 2008 campaign had a $2 million campaign finance violation. This resulted in fines and repayments.

It would be a very high bar, but if it could be proven that a conspiracy was involved to hide this from the FEC, then it would be a very big problem for the President.

My take is, that on the scale of seriousness of campaign finance violations, this is really small potatoes and primarily political in nature. Also, remember, just because someone has pleaded guilty to a crime (Cohen=Campaign finance) does not in any way mean the crime actually occurred. No judge or jury to date has fairly examined the evidence and ruled on the validity of the charges. It's a real possibility that Cohen plead guilty to this one charge to satisfy Mueller and in turn, gain favor in sentencing for all his personal crimes not related to the Mueller investigation.

protected by BlueDogRanch Jul 20 at 5:46

Thank you for your interest in this question. Because it has attracted low-quality or spam answers that had to be removed, posting an answer now requires 10 reputation on this site (the association bonus does not count).

Would you like to answer one of these unanswered questions instead?

Not the answer you're looking for? Browse other questions tagged or ask your own question.