The Corner

White House

Giuliani Did Not ‘Admit’ Trump’s Hush-Money Payments Were Illegal

President Donald Trump’s attorney Rudy Giuliani arrives with his guest Jennifer Leblanc at the White House, May 30, 2018. (Joshua Roberts/Reuters)

Aaron Blake writes:

“It has to be for the sole purpose,” Giuliani said. “If there’s another purpose, it’s no longer a campaign contribution — if there’s a personal purpose.” . . .

. . . This is simply not true. The law does not say that a campaign finance violation exists only if the “sole purpose” of it is to affect a campaign. In fact, it says 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.” This definition doesn’t carve out exceptions for things that were also for personal purposes (indeed, if that were the case, basically nothing would qualify). Instead, it says anything with a campaign benefit is a contribution.

Blake seems to simply not understand the debate that’s happening over the law and how Giuliani’s comment fits into it. He should read more NRO!

Yes, the “for the purpose of influencing any election for Federal office” language would seem to include these payments — that’s why Trump’s in real danger. But as I discussed over the weekend, drawing on an argument from election-law expert Bradley Smith:

There are only two categories. If an expense is “personal” — “to fulfill any commitment, obligation, or expense of a person that would exist irrespective” of the campaign — you don’t need to report it to the government, but you are prohibited from using campaign funds to pay for it. If it’s campaign-related — “for the purpose of influencing any election for Federal office” — you have to use reported campaign funds. Not all expenses fit all that well into these two boxes.

The language about purchases fulfilling a “commitment, obligation, or expense” that exists separately from the campaign is especially tricky, because the law doesn’t say whether this has to be the sole reason, the primary reason, or just a reason for the purchase. Trump may not have made the payments if he hadn’t been running for president, but certainly the payments at least in part helped shield his family and him personally from embarrassment, things he’d value apart from the campaign.

Smith writes that the rest of the statute helps us interpret it. For one thing, if this is a campaign expense, that would mean a candidate could collect campaign donations and use them to pay off porn stars, a result Congress likely did not intend. The statute also notes entire categories of purchases that are considered personal, even though in reality they are sometimes made mostly for the purpose of a campaign. This isn’t presented as a special exception for these purchases from the usual “irrespective” rule; the statute specifically says the rule “includ[es]” expenditures such as “a clothing purchase” — implying, plausibly, that when a purchase serves non-campaign purposes to a significant degree, it’s considered to fulfill the candidate’s separate commitments and obligations, even if the candidate is caught on video saying he made it mainly to help the campaign. This stops candidates from raiding their campaign treasuries to buy lots of nice clothes “for the speech tonight.” It also means they can buy nice clothes for the primary or even sole purpose of looking good on the stump without reporting the purchase as a campaign expenditure.

As I said later in that post, I am not at all comfortable with a law that creates a category regarding spending “for the purpose of influencing any election” and then contradicts that rule by defining the other category in very broad terms as well. We should fix the language. But Giuliani didn’t admit Trump’s payments were illegal; he just made the standard argument that they weren’t.

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