The prosecution of former President Donald Trump in New York stands out as an anomaly–and that’s not just because the defendant is the first ex-U.S. president ever to face a criminal indictment.
It’s a historic case fraught with concerns over legal sufficiency and political animus against Trump, the frontrunner for the 2024 Republican presidential nomination.
Many people are trying to understand how a financial-misclassification case against a federal candidate generated criminal charges in a state courtroom.
That is what happened with Trump’s 2016 political rival, Democrat Hillary Clinton. And with Democrat President Barack Obama.
In 2012, Obama’s campaign agreed to pay $375,000, one of the most substantial fines in FEC history. That 2008 election-cycle case centered on record-keeping deficiencies and his campaign’s acceptance of $1.4 million in contributions that exceeded federal limits. An “excessive contribution” claim also plays a role in Trump’s case.
And there’s a striking underlying similarity between the Clinton and Trump cases. Both involve allegations that campaign-related expenses were improperly recorded as payments for lawyers’ services.
Finding an answer depends on whom you ask, which factors they emphasize, and how they interpret laws.
But Smith and other experts say “prosecutorial discretion,” prosecutors’ near-absolute power to decide whether to pursue charges, could play one of the most significant roles.
In 2022, the FEC found “probable cause to believe” that the Clinton campaign violated federal election laws by “misreporting the purpose” of payments made via a Clinton-retained law firm, records show.
More than $1 million was paid to a strategic intelligence firm, Fusion GPS, during Clinton’s unsuccessful 2016 campaign. But campaign records classified the Fusion GPS payments as fees for attorneys’ work, not opposition research.
That research project produced a major effect. Fusion GPS’s connection to former British spy Christopher Steele produced a “dossier” that helped touch off a two-year federal probe of Trump, who dubbed it “The Russia Hoax.” Investigators found no evidence that Trump colluded with Russia to sway the election.
“In reality, it was the Clinton-backed Democratic machine that conspired with foreigners…to manipulate the election,” The Coolidge Reagan Foundation alleged in a 2018 FEC complaint against the Clinton campaign.
To settle such complaints about the Fusion GPS payments, Clinton’s campaign and the Democratic National Committee paid fines totaling $113,000; both denied wrongdoing.
A Key Difference?
Dan Cassino, professor of government and politics at Fairleigh Dickinson University in New Jersey, opined that alleged “criminal intent” differentiates Trump’s case from several other federal candidates’ spending controversies, including Obama’s and Clinton’s.
In those cases, “there wasn’t any allegation that the candidates were trying to cover up malfeasance, as we have in the Trump case,” Cassino told The Epoch Times via email. “Put another way: Those were civil offenses–not filing paperwork correctly or in a timely manner–not criminal offenses.”
Trump’s indictment accuses him of purposely falsifying New York business records to cover up a hush-money payment, which New York District Attorney Alvin Bragg alleges was an illegally large “campaign contribution.
Cassino offered an analogy: “If you don’t file your taxes on time, or you mistype something on your tax forms, you’ll get a letter from the IRS telling you to fix it, and maybe a fine. If you pretend that you have a bunch of deductions…or make up some dependents, you’re likely to get charged with a crime.”
But Smith, FEC chair from 2000-2005, says America’s campaign-finance laws are vague and subject to varying interpretations.
A primary reason Trump faces prosecution could boil down to “prosecutorial discretion,” said Smith, who is now a professor at Capital University Law School in Columbus, Ohio.
People applauding Trump’s indictment cite it as proof that “no one is above the law.”But Smith counters: “I don’t think anybody’s saying Trump’s above the law.”
He sees this as “the real question:” Should a District Attorney target someone for prosecution because of “who he is?” And is that what happened to Trump?
What if Trump were, for example, a city councilman who unsuccessfully ran for re-election three years ago? Would such a case have been pursued?
“I think the answer is ‘no,’” Smith said. “So, I think the question is not just Trump, but the law.”
Smith’s analysis of the law contradicts the legal theory that Bragg has advanced.
An Alleged Crime Instead of a Fine
Two Republican FEC commissioners cited “prosecutorial discretion” when they declined to further pursue allegations against Trump in 2021. Those accusations arose from the same scandal that led to Trump’s indictment under Bragg, a Democrat.
Just before the 2016 election, Trump attorney Michael Cohen paid Stephanie Clifford, aka “Stormy Daniels,” $130,000 to silence claims that she had an extramarital affair with Trump a decade earlier. Famous people, in the face of sordid allegations, often negotiate nondisclosure agreements with their accusers. Those agreements are legal.
But Bragg alleges the Clifford payment constituted an illegally large campaign contribution to Trump. Then Trump wrote checks to reimburse Cohen throughout 2017, paying fake invoices for Cohen’s legal services, Bragg said.
Trump has pleaded not guilty. But Bragg said Trump “went to great lengths” to hide the Clifford transaction and Cohen payments. Trump’s purpose was to hide “unlawful activity from American voters before and after the 2016 election,” Bragg said.
Smith points out: Under federal law, any expenditure, donation “or anything for the purpose of influencing an election” must be classified as a campaign expense.
Therefore, Bragg seems to be arguing that the Clifford payment was illegal because it wasn’t recorded as a campaign contribution or expenditure. “Case closed, right? Nice and simple,” Smith said.
But Smith sees several problems with that theory. Some revolve around Cohen.
No Crime, in Spite of Plea?
When news of the Clifford payment broke, Cohen said his own money was used to pay her. His lawyer wrote a letter to the FEC, stating: “Neither the Trump Organization nor the Trump campaign was a party to the transaction…and neither reimbursed Mr. Cohen for the payment directly or indirectly.”
Cohen later stated otherwise. To avoid a long prison term, Cohen pleaded guilty to several federal charges, some unrelated to the Clifford payment; one charge, however, stated the payment constituted an “excessive campaign contribution.”
Because Cohen’s case concluded with his guilty plea instead of a court decision, “it is not necessarily a precedent under the law,” Smith said.
And, Smith said: “You can’t convict Trump on the basis that Cohen said, ‘I’m guilty.” Each defendant is entitled to his own defense, his own day in court.
“You can’t hold Cohen’s confession against Trump; Trump gets a chance to raise any defenses he wants to raise,” Smith said.
One of those defenses might be to assert that what Cohen did “was not a crime at all,” Smith said.
That was Trump’s contention in August 2018, when he wrote on Twitter: “Michael Cohen (pled) guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation, and it was easily settled!”
In the New York criminal case, Smith says Trump’s argument could go something like this: Cohen plea-bargained, but Trump didn’t agree it was a crime. And he didn’t agree he was trying to cover up Cohen’s payment because Trump didn’t think it was a crime.
A section of campaign-finance law, known as the personal-use provision, expressly forbids candidates from converting donors’ money to personal use.
Prohibited uses of campaign money would include hiring a lawyer to seal records of a messy divorce or paying off people who threaten to file lawsuits, Smith said.
Those actions could benefit a candidate’s campaign and influence the election. But still, people take such actions to protect their reputations even if they’re not running for office, Smith said. In contrast, people don’t pay for campaign advertisements or rent campaign headquarters unless they are seeking to win an election. Thus, those are clearly expenses coverable by campaign contributions.
Smith said the personal-use test turns on this question: “What kinds of things does a person do if they’re campaigning, but not otherwise?”
Some people disagree with Smith’s analysis. But he said, “There’s really almost no judicial decision interpreting this provision of the law,” leaving it open to interpretation.
Despite the flaws Smith cites in Bragg’s case, Trump remains in great legal peril. The prosecutor “has got a tough row to hoe, but that’s the danger Trump has–that he makes it all stick,” Smith said.
Many people agree that, in Democrat-heavy New York, Trump faces an uphill battle in seating fair-minded jurors.
“There’s a pretty good chance that, even if I’m right on the law and everything, which I believe I am, the judge is gonna let it go to trial, and a jury can convict him,” Smith said. Trump, however, would likely win a reversal on appeal, Smith believes.
But Trump risks hurting his case with “his tendency to talk,” Smith said. “He’s got to shut up and let his lawyers handle the case.”
A Major Missing Piece
Democrats and Republicans alike have criticized Bragg’s case, saying it appears to be built on a shaky legal foundation.
But supporters say he likely has more solid evidence than might be apparent publicly.
Bragg also faces criticism for the seemingly uneven administration of justice. Bragg has doggedly pursued felony financial charges against Trump while reducing violent felony charges to misdemeanors for other suspects.
Although Bragg’s office has prosecuted dozens of people for falsifying business records, experts have said that Trump’s case could be the state’s first involving a federal campaign.
To elevate misdemeanor charges to felonies, Bragg coupled state law with an allegation that Trump falsified business records “with intent to defraud and intent to commit another crime.”
But Bragg has only hinted at what the other crime might be; it isn’t revealed in Trump’s 34-count indictment, nor its accompanying “statement of facts.”
Some legal analysts, including Ohio attorney Mike Allen, a former prosecutor, think that glaring omission may have fatally flawed the indictment.
But Cassino, the New Jersey professor, sees it as a possible “strategic move” for Bragg.
“It seems that they have multiple theories as to what the underlying crime could be… and they don’t want to commit to either before they have to, That way, if one theory gets tossed out, they have the other one to fall back on,” Cassino said.
Thus, omitting the underlying crime may buy Bragg some time and flexibility, Cassino said.
“Bragg seems to be going with a belt-and-suspenders approach here,” he said. “He’ll probably have to commit to one theory or another eventually, but he’ll put it off as long as he can.”
By hitching his legal wagon to an invisible horse, Bragg created conundrums.
If the unnamed charge falls under state law, is it really a “crime” without a prior conviction of Trump on that charge?
Or, if the unnamed charge instead falls under federal campaign finance law, does Bragg, as a state-system prosecutor, have proper jurisdiction over it?
But for many ordinary citizens, such technical issues fail to address whether Trump was unfairly singled out.
As Smith wrote in a 2018 Reason magazine column:
“Increasingly, campaign finance laws now illustrate the classic situation where the government can always get you for something— it’s just a question of what they’ll get you for.”