Which is worse: candidate, businessman, and then still private citizen Donald Trump using his own money to make what Hillary Clinton might call "bimbo eruptions" go away to protect his brand and himself from personal embarrassment, or Congress using taxpayer money in a slush fund to pay off those sexually harassed by sitting officeholders? As Penny Nance, president and CEO of Concerned Women for America, notes in USA Today:
Literally a year ago – as the #MeToo era was erupting – the nation was waking up to news that a secret congressional "hush fund" had been used by Members of Congress to pay off accusers of sexual misconduct. Taxpayer money – yours and mine – was used to pay off these alleged victims[.] ...
Nobody knows how many congressmen and Senators are involved, and if [Pelosi] is a willing participant to keep all of this a secret she will forfeit credibility on every other issue[.] ...
What we know already is devastating. We know congressmen John Conyers (D- Mich.) and Blake Fahrentold (R-Tex.) used this "hush fund" to settle with alleged victims. Both men have already left Congress.
We also know that none of the beneficiaries of this slush fund has been threatened with indictment and incarceration for campaign finance violations since suppressing such information, as Rep. Nadler puts it, amounts to committing a fraud on the American people using their own money.
How many of Trump's accusers are guilty of the very infraction they accuse him of? How many defended the practice and fought to keep it secret and escape accountability with the voters? In Trump's case, Professor Alan Dershowitz points out, if he was using his own money to contribute to his own campaign, there is no crime:
Harvard Law Professor Alan Dershowitz frustrated MSNBC's coverage of Donald Trump's payments to former Playmate Karen McDougal and porn star Stormy Daniels in 2016, repeatedly siding with Trump on the issue of the legality of a candidate paying "hush money to anyone he wants during a campaign."
"The president doesn't break the law if, as a candidate, he contributes to his own campaign," said Dershowitz (transcript via RCP). "So if he gave $1 million to two women as hush money, there would be no crime. If he directed his lawyer to do it, and he would compensate the lawyer, he's committed no crime." ...
[A] president is entitled to making such payments:
The president is entitled to pay hush money to anyone he wants during a campaign. There are no restrictions on what a candidate can contribute to his own campaign. So if, in fact, the president directed Cohen to do it as his lawyer and was going to compensate him for it, the president committed no crime. If Cohen did it on his own then Cohen commits the crime.
Veteran campaign finance lawyer Dan Becker agrees with the assessment by Dershowitz that private citizen Trump committed no crime and was merely protecting his brand:
Meanwhile, an expert campaign finance lawyer said in an interview published Monday that he is not impressed with the Department of Justice's evidence that effectively links Trump to campaign finance violations after the recent release of the Cohen sentencing memo.
Dan Backer, the lawyer, told Forbes that there appears to be no evidence to corroborate the DOJ's apparent assertion of any illegality on Trump's part.
Backer, a veteran campaign counsel, said it is common practice for high- profile individuals and companies to take part in these kinds of payment arrangements. He said Trump is a brand, he has carried out similar payments for years and these so-called "hush-buys" will likely continue.
"Brand protection is not a campaign contribution," he told the magazine.
As former FEC chairman Bradley Smith pointed out in an interview with Fox News host Mark Levin, hush money payments are not a campaign finance violation if it can be shown they would have happened in the absence of a campaign:
So, what the courts and what the statute says very clearly what the FEC has said in its regulation is if something is not an expense that arises directly out of a campaign, for example, you rent offices for a campaign headquarters, you hire a campaign manager, you pay for TV ads, you print up buttons and bumper stickers, those are all things you're doing because you're running for office.
But the fact that something helps your campaign doesn't make it a campaign expense. For example, I decide I'd look better on the campaign trail if I had teeth whitened. Not a campaign expense. I want a new suit to look good at the debate, not a campaign expense. Where it takes something that's more relevant to what we are seeing going on recently, as you alluded to sort of the Trump payments to some of these women who alleged various affairs and so on.
If I'm a successful businessman and I decide I want to run for office and I said, I've got all the lawsuits against me as businessmen often do against their companies and so on, these are all a bunch of BS, there is no merit to them, but I don't want them out there. I don't want people asking me about them, I don't want them dragging my campaign, settle those lawsuits, tell my lawyer. I can't pay the settlements with campaign funds, that's not a campaign expenditure, the obligation did not arise out of my running for office. So that's the long answer to your question, the short answer is a simple no, paying somebody for something to be quiet about something that was done or alleged years before is not a campaign expense.
Over a year ago, H.R. 4494 – the Congressional Accountability and Hush Fund Elimination Act – was introduced. It's a bill that called for publicizing the names of those who used the hush fund to pay for these so-called "settlements." Many in both parties co-sponsored his bill, but it went nowhere. It is time it should go somewhere. As Penny Nance notes:
If Pelosi doesn't move immediately to disclose the names of those in Congress who used this hush fund, she will be part of the biggest sexual misconduct scandal in history.
Even bigger than Stormy Daniels.
Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor's Business Daily, Human Events, Reason Magazine, and the Chicago Sun-Times among other publications.