united-states criminal-law finance president elections
What can happen if the US President has violated campaign finance laws?
<p>There has been recent news about President Donald Trump possibly breaking campaign finance laws due to a repayment made to one of his lawyers. </p>

<ul>
<li>NPR: <a href="https://www.npr.org/2018/05/02/607943366/giuliani-says-trump-did-know-about-stormy-daniels-payment" rel="nofollow noreferrer">Trump Admits To Authorizing Stormy Daniels Payoff, Denies Sexual Encounter</a> </li>
<li>The Washington Post: <a href="https://www.washingtonpost.com/politics/trump-offers-explanation-on-twitter-about-how-he-reimbursed-his-lawyer-to-hush-porn-star/2018/05/03/8e649b10-4eba-11e8-84a0-458a1aa9ac0a_story.html?utm_term=.ad4abaa77b2f" rel="nofollow noreferrer">Trump acknowledges his lawyer was reimbursed after payment to Stormy Daniels</a></li>
<li>NY Times: <a href="https://www.nytimes.com/2018/05/03/us/politics/trump-cohen-giuliani.html" rel="nofollow noreferrer">Trump Says Payment to Stormy Daniels Did Not Violate Campaign Laws</a></li>
</ul>

<p>If the President has actually violated campaign finance laws, what can happen? Does it even matter since he is already the US President? </p>

<p>Let's start with the most important point first: </p>

<p>A campaign finance violation is not a ground to remove an elected official from office, no matter how egregious, on its own, even if one could prove that the campaign finance violation probably caused the outcome of an election to change.</p>

<p>Congress could decide, however, that a campaign finance violation constitutes a "high crime or misdemeanor" for which a sitting President could be impeached, if a majority of the House of Representatives votes to impeach the President and a two-thirds majority of the U.S. Senate trying the impeachment under the supervision of the Chief Justice of the United States (that and not "Chief Justice of the United States Supreme Court" is the official title) finds that the offense set forth in the impeachment has been committed and constitutes sufficient grounds to remove the President from office.</p>

<p>At the outset, there is some ambiguity over whether the violation of campaign finance laws would have been by individual person, or the political campaign of the individual person (which is a Section 529 non-profit organization).</p>

<p>The individual or the campaign, as the case might be, would definitely owe either civil or criminal fines, as the case might be, for a violation of the particular campaign finance laws that the individual or campaign is alleged to have violated. The violation could also affect the ability of the violator to obtain all or any amount of federal matching funds in a future election.</p>

<p>Depending upon the particular campaign finance law involved, which isn't clearly specified, there might be a criminal penalty (either a misdemeanor or a minor felony) as well, which could give rise to a probation sentence, a sentence to some period of incarceration, a period of post-release parole, criminal fines, court costs, and, at least in the case of a felony, some collateral consequences of that conviction such as a prohibition on owning a gun and ineligibility for many occupations and jobs.</p>

<p>Neither a civil campaign finance violation, nor a criminal conviction for a campaign finance violation, disqualifies someone from holding the office of President.</p>

<p>The President does not have immunity from civil or criminal consequences of campaign finance violations committed prior to taking office, and the President's campaign, at a minimum, is not immune to campaign finance violations at any time. Presidential immunity from liability is limited to the conduct of the President while holding the office in furtherance of the governance duties of the President.</p>

<p>Generally speaking, campaigning would not be a governance duty of the President, but there are factual circumstances under which it is hard to distinguish between what constitutes governing and what constitutes campaigning in the case of a sitting President who is currently in office.</p>

<p>Also, campaign finance violations can't be prosecuted by just anyone. A violation of federal campaign finance laws must be prosecuted by a federal government lawyer authorized to do so by the Federal Election Commission (FEC), which has an even partisan balance of members by design and almost always deadlocks on motions to prosecute anything but the least controversial and most blatant campaign finance violations against members of either of the two major political parties in the United States. A "private attorney general" can't bring a lawsuit to enforce campaign finance laws unilaterally.</p>

<p>The President can definitely pardon a criminal violation of a campaign finance law by anyone other than himself. The President definitely cannot pardon a civil violation of a campaign finance law by anyone. The majority and more analytically sound position is that the President cannot pardon himself for his own criminal violation of a campaign finance law (there are prior questions and answer at Law.SE regarding that question).</p>

<p>A judge considering a campaign finance violation charge against a sitting President could, however, take steps short of dismissing the charges that could accommodate a sitting President. </p>

<p>For example, the judge could be very deferential to the President in setting hearing dates, allowing the President to participate in proceedings by telephone or (in some but not all cases) through a representative, or in setting the amount of a bond or the terms of pre-trial release in the event of a criminal charge, or in cooperating with the President's security detail when the President is required to appear. In a civil violation case, the President would probably be allowed to be a deposition witness, with the deposition testimony used at trial, rather than appearing in person at trial, if his lawyers requested that treatment.</p>

<p>Technical violations can result in fine imposed by the Federal Election Commission. They provide <a href="https://transition.fec.gov/em/respondent_guide.pdf" rel="noreferrer">this booklet</a>, and <a href="https://www.law.cornell.edu/cfr/text/11/chapter-I" rel="noreferrer">these regulations</a> are applicable. <a href="https://www.law.cornell.edu/cfr/text/11/111.43" rel="noreferrer">This regulation</a> spells out how the fine is computed. The Dept. of Justice will handle any criminal accusations, and here is <a href="https://www.justice.gov/sites/default/files/criminal/legacy/2013/09/30/electbook-0507.pdf" rel="noreferrer">their handbook</a>. To be criminally prosecutable, the act must be done knowingly and willfully. According to DOJ, this could be up to 5 years in prison. There are other associated federal crimes implied (but not entailed) by willful non-disclosure: perjury, conspiracy to impede, false statements, obstruction of investigation, which could make the penalty longer. See chapter 5 of the DOJ handbook for a detailed analysis.</p>

<p>There is no provision for direct non-electoral removal of a president for such a conviction, but even without an actual conviction, Congress has the (sole) power to impeach and remove a president, and the rules are only refer to "high crimes and misdemeanors", which is not precisely defined. The Clinton impeachment bill is <a href="https://www.congress.gov/bill/105th-congress/house-resolution/611" rel="noreferrer">here</a> for comparison.</p>

<p>What would happen...? is the question. First, it would have to be determined if a law was broken and what it was.</p>

<p>There are two main possibilities. The one being a reporting violation. One can say it was a private transaction not connected to the campaign. No need to report anything. </p>

<p>If, and it's a big if, it could be shown that the sole purpose of the hush money was to enhance the campaign (nothing personal), then it could possibly be construed as a campaign contribution. If so, and the money came directly from Trump, still no violation because the candidate has no limits, but the money would still have to be reported the FEC. </p>

<p>If the money came from Cohen personally, as he originally stated, then the campaign broke the law by accepting more then max contribution by an individual of $2,700 and not reporting it. If Cohen contributed this money through his corporation then again the campaign broke the law prohibiting corporate donations and not reporting it. Again, if it was determined that the payment was a contribution, then the failure of the candidate to report it, regardless of how paid, was a reporting violation. </p>

<p>The most serious charge, not connected to reporting and contribution limits, would be if it could be proven that the candidate and Cohen conspired in some fashion to hide the fact this was a reportable campaign contribution and/or they exceeded campaign contribution limits. A conspiracy would be a serious charge against Trump, Cohen and anyone else involved. </p>

<p>So, the nature of the payments in question has not been legally determined yet, by any judicial authority, as a campaign contribution. Until then, no possible crime could be committed. </p>

<p>If, after a determination that it was a contribution, then the failure to report and accepting illegal contributions would have to be dealt with. Not an unusual campaign problem. Obama's 2008 campaign had a $2 million campaign finance violation. This resulted in fines and repayments. </p>

<p>It would be a very high bar, but if it could be proven that a conspiracy was involved to hide this from the FEC, then it would be a very big problem for the President.</p>

<p>My take is, that on the scale of seriousness of campaign finance violations, this is really small potatoes and primarily political in nature. Also, remember, just because someone has pleaded guilty to a crime (Cohen=Campaign finance) does not in any way mean the crime actually occurred. No judge or jury to date has fairly examined the evidence and ruled on the validity of the charges. It's a real possibility that Cohen plead guilty to this one charge to satisfy Mueller and in turn, gain favor in sentencing for all his personal crimes not related to the Mueller investigation. </p>
