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Can Campaign Funds Pay for a Criminal Defense Lawyer? Maybe.

Trump’s 2020 campaign has spent $50,000 on Donald Jr.’s defense lawyer. Is that a proper use of campaign money?

August 15, 2017

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

Earlier this month word leaked that Special Coun­sel Robert Mueller has been present­ing evid­ence to a Wash­ing­ton, D.C. grand jury for several weeks. Just because a federal grand jury has been impaneled does not mean there will be any indict­ments soon, if ever. Rather, grand juries are often used as a power­ful tool by prosec­utors to compel testi­mony or docu­ment produc­tion.   

Yet one possible crim­inal charge against Trump staffers are viol­a­tions of campaign finance laws that ban foreign dona­tions to Amer­ican polit­ical campaigns. This same law (52 U.S.C. § 30121) also makes soli­cit­ing “a thing of value” from a foreign national a viol­a­tion. Thus, all the details surround­ing Donald Trump Jr.’s June 9, 2016 meet­ing with a group of Russi­ans in  his Trump Tower office are import­ant.

The key player at the meet­ing was Russian lawyer Natalia Vesel­nit­skaya. As Donald Jr. has poin­ted out, Vesel­nit­skaya “has said publicly [she] was not a govern­ment offi­cial.” Which is nice, but a little beside the point. No one denies Vesel­nit­skaya was a foreign national. And as Donald Jr. himself admits, he was lured into the meet­ing by the prospect of acquir­ing “Polit­ical Oppos­i­tion Research” on Hillary Clin­ton. Oppos­i­tion research certainly counts as “a thing of value.” (As for the Russian govern­ment connec­tion, that certainly was of little concern to Donald Jr. at the time. Donald Jr.’s emails show that when he learned the source of the inform­a­tion was the “Crown prosec­utor of Russia” and furnish­ing it “is part of Russia and its govern­ment’s support for Mr. Trump,” less than 20 minutes later he replied, “…I love it…”)

As far as the law is concerned, it matters a great deal whether anything changed hands at the meet­ing between Donald Jr. and Vesel­nit­skaya, and what exactly Donald Jr. reques­ted from the Russi­ans, if anything.

Mean­while, Trump’s 2020 re-elec­tion campaign has already been rais­ing and spend­ing money to the tune of $10 million. One of the big ticket items for the Trump campaign so far is $900,000 in lawyers’ fees includ­ing $50,000 for Alan Futer­fas, Donald Jr.’s defense lawyer.

This money to Futer­fas could raise further legal prob­lems because using campaign funds to pay lawyers under certain circum­stances is illegal. The law on this matter is murky at best. Gener­ally speak­ing, using campaign funds for “personal use” is prohib­ited. And personal use is defined as using campaign funds for any expense “that would exist irre­spect­ive of the candid­ate’s campaign or respons­ib­il­it­ies as a federal office­holder.”

For instance, if a candid­ate took $60,000 from her campaign coffers to pay for her daugh­ter’s college tuition, that is clearly an expense that would exist regard­less of the campaign. It is personal use of campaign funds and there­fore, illegal. By contrast, if the candid­ate spent $10,000 on Span­ish immer­sion classes so she could better commu­nic­ate with her poten­tial constitu­ents, that would be a legit­im­ate expense, because it stems from the campaign itself.

Yet, when it comes to legal fees, 52 U.S.C. §30114 says the Federal Elec­tion Commis­sion will determ­ine what is permiss­ible “on a case-by-case basis.” Clas­sic examples of legal expenses that can’t be paid for with campaign cash are divorces and DUIs.

But the issue of just what legal expenses can be covered was decided last year by the D.C. Circuit in a unan­im­ous opin­ion writ­ten by Judge Merrick Garland. (Garland, you’ll recall, was nomin­ated by Pres­id­ent Obama to fill the Supreme Court seat of the late Antonin Scalia. But Senate Major­ity Leader Mitch McCon­nell would not allow the nomin­a­tion to proceed, running out the clock until a new pres­id­ent could make their own selec­tion. In this case, the new pres­id­ent turned out to be Donald Trump, and his pick, Neil Gorsuch, now sits on the court.)  

Garland’s opin­ion involved former Idaho GOP Senator Larry Craig and his use of campaign funds for legal fees in a crim­inal case. The Craig saga star­ted in June 2007 with him sexu­ally propos­i­tion­ing an under­cover cop in a Minnesota airport bath­room. Craig was arres­ted, and in early August pleaded guilty to a misde­meanor charge of disorderly conduct.

Craig managed to keep it all secret until the end of August when Roll Call broke the whole story. The next day the Idaho States­man published a story with three men alleging homo­sexual beha­vior on the part of Craig, includ­ing one GOP oper­at­ive who said he had oral sex with the Senator in the bath­room of the Wash­ing­ton, D.C. train station. Senate colleagues called for Craig to resign. And, at first, Craig said he would resign, claim­ing he would leave office at the end of Septem­ber. But soon Craig “recon­sidered” his decision, and he remained in in office until the end of his term in Janu­ary 2009. He devoted the remainder of his term to an unsuc­cess­ful fight to with­draw his guilty plea.

And here’s where Craig ran into campaign finance prob­lems. He used nearly $200,000 in campaign funds to pay the lawyers who tried to undo his guilty plea. But the FEC told Craig that this was an imper­miss­ible use of campaign funds. Not only did Craig now owe his campaign $200,000, but the FEC slapped him with a $45,000 civil penalty to boot.

Not one to give up easily, Craig litig­ated the issue of whether the payments to his lawyers consti­tuted using campaign funds for personal use. Craig’s lawyers posited some inter­est­ing theor­ies, such as that it would­n’t be so crit­ical to fight the charges unless he was a federal office­holder. Nonethe­less the panel accep­ted the FEC’s logic that the Senat­or’s bath­room shenanigans “did not concern the Senat­or’s campaign activ­it­ies or offi­cial duties, the legal fees he expen­ded trying to with­draw his plea consti­tuted ‘per­sonal use.’”

Why is FEC v. Craig for U.S. Senate import­ant for Donald Jr.? Because it puts him into some­thing of a bind. If Mueller considers the $50,000 to Donald Jr.’s lawyers an inap­pro­pri­ate use of campaign funds, he can cite the D.C. Circuit hold­ing for support.

But there is also language in the Craig case that could be help­ful to Donald Jr. The opin­ion states, “[T]wenty years of [FEC] advis­ory opin­ions have concluded that  legal  expendit­ures  made  in  response  to charges  of  campaign  or  offi­cial  miscon­duct  are  not  personal [use]; expendit­ures  to  rebut  alleg­a­tions  of  personal  miscon­duct  are.”  In the Craig case, the court found that his arrest and guilty plea had noth­ing to do with the fact that he was a U.S. Senator or a federal candid­ate.  And thus his crim­inal defense costs were all personal expenses that could not be covered using campaign money. 

The trouble for Donald Jr. is that in order to tap into the campaign funds to pay for his lawyer, he must assert that his legal costs were gener­ated by his role in the campaign. But this limits the range of his other defenses because this conces­sion fore­closes any defense that the famous meet­ing in Trump Tower with Jared Kush­ner, Paul Mana­fort and the Russi­ans wasn’t a campaign event. He can’t have it both ways. Either it was a campaign event which opens him up to possible liab­il­ity for viol­a­tions of the ban on foreign soli­cit­a­tions or it was not a campaign event and he owes the Trump campaign $50,000 for his legal fees.  

Never say that the universe does­n’t have a sense of the absurd. Donald Jr.’s legal fate could turn on how Judge Merrick Garland ruled in a case where Larry Craig tried to use campaign money to erase a guilty plea stem­ming from an encounter in a Minnesota airport bath­room.

Ciara Torres-Spel­liscy is an asso­ci­ate professor of law at Stet­son Univer­sity College of Law, a Fellow at the Bren­nan Center for Justice at NYU School of Law and the author of Corpor­ate Citizen?: An Argu­ment for the Separ­a­tion of Corpor­a­tion and State.