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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.