President Trump has been stress tweeting a lot in the new year. One of the many topics he has covered has been campaign finance. The essence of his stance: “Campaign finance, fuhgeddaboudit.”
On Saturday, the president tweeted:
“Many people currently a part of my opposition, including President Obama & the Dems, have had campaign violations, in some cases for very large sums of money. These are civil cases. They paid a fine & settled. While no big deal, I did not commit a campaign violation!”
This is just a guess, but it seems quite possible that Trump is preoccupied with campaign finance because his former lawyer Michael Cohen is facing three years in jail for his campaign finance violations, as well as what Cohen’s sentencing judge called a smorgasbord of crimes.
When I saw this presidential tweet, I felt like I was having déjà vu all over again, as Yogi Berra would say. I heard a similar argument just the day before when I was presenting on the Association of American Law Schools (AALS) Election Law Panel about Protecting American Elections from Foreign Interference. Drawing on my second book, Political Brands, I talked about apparent violations of American campaign finance law in 2016 that bar foreigners from spending in U.S. elections and bar Americans from asking for foreign money.
Two concrete examples I used were a Facebook ad paid for by the Russian government’s Internet Research Agency that urged Americans to “Vote Stein” (referring to Jill Stein, then the presidential candidate for the Green Party). This was illegal because it used Buckley v. Valeo’s magic words “vote” (otherwise known as express advocacy) and was paid for by a foreign government.
The second concrete example I used were screen shots of emails from Eric Trump, Donald Trump Jr., and Donald Trump himself to one Stuart McDonald during the 2016 election. If that name doesn’t ring a bell, it’s because Mr. McDonald isn’t from around here. Mr. McDonald is a Member of Parliament in Scotland. He got so cheesed off about the volume of emailed solicitations for campaign funds that he put out a humorous tweet imploring the New York Times to tell Trump to stop. In his tweet he called Trump’s solicitations for campaign money “pathetic.” In my AALS presentation, I pointed out that such solicitations are also illegal because they run afoul of a long-standing prohibition on asking foreigners, let alone foreign government officials, for money in an American campaign.
In reaction, Professor Bradley Smith, one of my co-panelists and a former FEC commissioner, proffered that the Obama campaign had received “$70 million in foreign money” and paid a huge fine to the FEC.
Both the presidential tweet and Smith’s comments on the panel seem to be referring to an instance in 2013 when the Obama campaign paid a $375,000 fine to the FEC for the 2008 campaign mostly for not returning excessive campaign donations quickly enough and delays in reporting. But none of those funds were alleged to have come from a foreign source. This is classic whataboutism, where the excuse for one person’s bad behavior is to point out the bad behavior of another. But two wrongs do not make a right. Also, is it too much to ask for all presidential candidates to abide by our election laws?
And moreover, there was never an accusation that Barack Obama had personally violated a campaign finance law or regulation. This fine was against his campaign. And this fine was mostly for reporting violations including omitting dates on reported funds.
The Obama campaign’s reporting error was a civil matter and is very different from where Trump finds himself. If Michael Cohen’s guilty plea is accurate, then he criminally violated the campaign finance laws at the direction of then-candidate Trump (by making a contribution that was too large and by facilitating an illegal corporate contribution). This could make President Trump an unindicted co-conspirator in those crimes. And here the underlying alleged offense is not merely civil disclosure errors.
Trump as well as his two adult sons could also be personally guilty of the many solicitations of foreigners like the ones they sent to MP Stuart McDonald during the 2016 campaign. The gist of the critique from the Trump in his tweet above, and from Professor Smith, seems to be “well everyone’s doing it,” so breaking campaign finance laws is not a big deal. Whether DOJ will go after the solicitations of foreign MPs is up to them. But a willful violation of campaign finance laws can be prosecuted as a crime, as Trump should know, since he once claimed “nobody knows more about campaign finance than I do because I’m the biggest contributor.”
Given that the Special Counsel cited campaign finance laws in his February 2018 indictment of 13 Russians, and the Southern District of New York has now used two separate campaign finance laws to prosecute Michael Cohen, and reached a non-prosecution agreement with American Media Inc. about its campaign finance violation, the stress tweets are likely to keep on flowing. Just remember with all Trump tweets, to fact check them before you believe them.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.