President Trump is the world’s worst client. He speaks when he should shut up; he doesn’t listen to his lawyers; he takes action that exacerbates legal difficulties. The most irritating aspect of this unfortunate tendency is that Trump actually has a couple of robust legal defenses with regard to the accusation that he violated campaign finance law by paying off his paramours. Those defenses come in two forms.
1. Trump Didn’t Intend To Break The Law. Under the law, criminal liability for campaign finance violations attaches only if you intended to violate the law. This requires a certain level of baseline knowledge of the law. But Trump could easily say that he relied on his attorney, Michael Cohen, to know the law – he’s not a lawyer. Now, Trump was intimately involved, according to Cohen, with setting up the structure for the passage of the cash. But there’s no evidence of that so far, other than Cohen’s testimony. Jan Baran, a GOP finance lawyer, explained to Politico: “In order to prove criminal intent, you have to point to evidence that the actors knew or had reason to know what they were doing was illegal.” Baran pointed out that even players in the field aren’t sure whether Trump’s payoffs were even governed by campaign finance law, given that they could be construed as personal expenditures. “If that many people don’t know what the law means, then it can be very hard to convict anybody of violating a campaign finance law.”
2. Trump Didn’t Break The Law. This is the case made by former FEC chairman Bradley Smith, who argues that Trump’s payoffs to the ladies were actually personal expenditures. Writing in The Washington Post, he stated:
However, regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages and Brooks Brothers suits — seems more like bribery than funding campaign speech.
In other words, Trump’s attempts to “influence an election” isn’t enough to label an action a campaign finance issue. The counterargument would be FEC language regarding the applicable test: “if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies.” In other words, it’s only a personal expenditure if Trump would have paid for it regardless of the context. Trump may have a defense here: he pays off women all the time. Then he’d have to show evidence that’s true.
No matter what, Trump doesn’t help himself by talking here. He has lawyers for this. He should use them. But Trump’s biggest problem is his own ego. If he just admitted that he doesn’t know the law and delegated it to Cohen, or states that he pays off women for sex on a routine basis – both of which are both credible and likely true – he’d be off the hook. But does he have the humility to recognize it?