Brad Smith: What I would have told the Trump jury

BRAD SMITH: WHAT I WOULD HAVE TOLD THE TRUMP JURY. In recent days, it has become clear that the Trump trial, in which Manhattan District Attorney Alvin Bragg seeks to imprison former President Donald Trump for a maximum of 136 years over allegedly false bookkeeping, will somehow come down to federal campaign finance law. In this way: Trump is charged with falsifying his company’s business records regarding his payment for a legal nondisclosure agreement with the porn actress Stormy Daniels — and doing so with the intention of committing another crime. But prosecutors have never specified what that other crime is. 

In various court filings, however, prosecutors have suggested they plan to argue that Trump intended, along with the false bookkeeping, to violate a state law that bars promoting a political candidacy “by unlawful means.” That’s the other crime, prosecutors will say, and the “unlawful means” will be a violation of the Federal Election Campaign Act, or FECA, the 1970s-era law that regulates political fundraising and spending in federal elections. 

That would create a weird situation: a local district attorney in New York prosecuting federal law. “One would say Bragg is outside of his lane, but in this case, he’s on a completely different highway,” George Washington University law professor Jonathan Turley told Fox News in March. “This is an effort by a state official to effectively prosecute a federal crime, a crime that the Department of Justice decided not to prosecute.”

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But that’s what Bragg apparently plans to do. And that led the Trump defense to consult an expert in federal campaign finance law to be ready to testify in the event that Bragg’s prosecutors do indeed characterize the Trump case as based on a violation of federal election law. The expert they chose was former Federal Election Commission Chairman Brad Smith, who is certainly one of the leading authorities in the nation on the application of FECA.

Smith has been an outspoken opponent of what he views is the overapplication of campaign finance law. Specifically, as this newsletter noted a couple of weeks ago, Smith “has argued that there are all sorts of things a candidate can spend money on that are not legally classifiable as ‘for the purpose of influencing any election.’” Among those things would be the nondisclosure agreement Trump reached with Daniels.

The problem for Trump is that Judge Juan Merchan does not want to hear from Smith. Early on, Merchan barred Smith from testifying about virtually anything that had anything to do with the Trump case. He barred Smith from testifying about the campaign finance laws at the heart of Bragg’s charges against Trump. He barred Smith from testifying about anything except general facts about the job of the FEC or the definition of some common campaign terms. In the end, the Trump team decided it was not worth calling Smith to testify under what amounted to a judicial gag order.

So Smith left the courthouse without testifying on Monday. As he headed home, we had a phone conversation about what he would have told the jury had Merchan allowed it. 

Smith was not going to give the jury his views on the specific charge against Trump. He knew the judge would never allow that, and he didn’t intend to try. Instead, had he been allowed, Smith said he wanted the jury to know about the complexity of campaign law.

“The lawyers instruct the juries on the law,” Smith said, “and they don’t want a battle of competing experts saying here’s what the law is. They feel it’s their province to make that determination. The problem, of course, is that campaign finance law is extremely complex and just reading the statute to people isn’t really going to help them very much.”

Smith gave the example of a product liability lawsuit over a complicated piece of machinery. “And you just said to the jury they’re guilty if you find them negligent. Well, what is negligence? Negligence is not using ordinary due care. And the jury has no idea of what is technologically feasible, what are the industry norms, how do people understand it, and that sort of thing.” In this case, FECA is a very complicated piece of machinery.

The goal of his hoped-for testimony, Smith said, was “to lay out the ways the law has been interpreted in ways that might not be obvious.” As an example, Smith cited the phrase “for the purpose of influencing an election,” which has been heard during much analysis of the trial. “You read the law and it says that anything intended for the purpose of influencing an election is a contribution or an expenditure,” Smith explained. “But that’s not in fact the entirety of the law. There is the obscure, and separate from the definitional part, idea of personal use, which is a separate part of the law that says you can’t divert campaign funds to personal use. That has a number of specific prohibitions, like you can’t buy a country club membership, you can’t normally pay yourself a salary or living expenses, you can’t go on vacation — all these kinds of things. And then it includes a broader, general prohibition that says you can’t divert [campaign funds] to any obligation that would exist even if you were not running for office.”

What is the point of that? “We would have liked to flag that exception for the jury and talk a little bit about what it means,” Smith said. “And also, we would have talked about ‘for the purpose of influencing an election’ is not a subjective test, like ‘What was my intention?’ — it’s an objective test. So hiring campaign staff is for the purpose of influencing an election. Renting space for your campaign office, buying ads, maybe doing polling, printing up bumper stickers, travel to campaign rallies, renting venues for campaign rallies — all of those things exist only because you are running for office. But under the personal use rules, a lot of things candidates do running for office are not considered campaign expenditures, things like paying for a weight loss program or a gym membership, nicer clothes, teeth whitening, or all that sort of thing. It may be true that you do those things in part to help yourself get elected — you might not do them otherwise — but they are not obligations that exist simply because you are running for office. Lots of people do those things.”

Smith offered another example. “Go back to 1999. Hillary Clinton buys a house in New York. She bought it clearly to influence the election — I mean absolutely, right? — because she had to have a residence in New York. It is totally indisputable — that is a reason why she bought it. But it’s not a campaign expenditure. It doesn’t matter. People buy houses. We would have wanted to inform the jury about the notion of personal use and talked about the idea that what is a campaign expense is an objective test, not a subjective test.”

When it comes to the details of the Trump prosecution, knowing how campaign finance law works has led Smith to believe that what is alleged to be the core violation in the case, that paying Daniels amounted to a campaign contribution or a campaign expenditure, is simply not true. “I can tell you my personal belief is that clearly paying hush money, or paying for a nondisclosure agreement, does not constitute a campaign expense,” Smith said. “To use an example I’ve often used, it’s not a campaign expense if a businessperson is running for office and his businesses are getting sued, and if he goes to his company lawyers and says, ‘I want to settle these lawsuits against us. We’ve got some wage employment lawsuits and a woman is alleging sexual harassment. We’ve got 36,000 employees, but we’ve got these three complaints and the press will make a big deal about them. So I want you to settle these.’ And the company lawyers say, ‘No, these are great cases we should win. We shouldn’t settle them.’ He says, ‘I don’t care. I’m running for office. I don’t want press stories on it. I want you to settle them quietly.’ Well, he cannot use campaign funds to pay that settlement, even though he is clearly doing it for the purpose of influencing his campaign.”

“It’s kind of similar to what went on here,” Smith continued, referring to the Trump case. “So my personal belief is that this clearly would not have been a campaign expenditure, never had to be reported, and therefore was not misreported.” 

Smith stressed again that he did not plan to testify about the specifics of the Trump case. Instead, he hoped to “lay out some of the factual work of the law — how does the law work in practice?” But that’s not going to happen.

How would the jury have reacted to Smith’s testimony? No one outside the jury can say. But perhaps they would have been grateful. After all, campaign finance law is extraordinarily complicated. Back in 2013, in an oral argument, Supreme Court Justice Antonin Scalia said, “This campaign finance law is so intricate that I can’t figure it out.” Scalia was, of course, one of the great legal minds of his or any other generation. If he had so much trouble, perhaps the Bragg jury would have benefited from some expert testimony.