Former FEC Commissioner Says Trump Guilty Verdict ‘Makes No Sense’

Former President Donald Trump speaks to media at Trump Tower in New York City on May 31, 2024. Juliette Fairley/The Epoch Times

Bradley Smith, a former Federal Election Commission head appointed by President Bill Clinton, argued in a June 1 thread that the timing of the payments in the New York criminal case against former President Donald Trump means they could not have constituted a Federal Election Campaign Act (FECA) violation.

Mr. Smith was a sought-after congressional witness on the topic of campaign finance reform, and was originally intended to be a defense witness in the case against President Trump. However, the presiding judge had limited the scope of expert witness testimony for the defense to the point that Mr. Smith said on X that the defense saw no point in having him testify on such a basis.

“Presidential campaigns file monthly reports with the Federal Election Commission (FEC). These are filed on the 20th of each month, and cover expenditures and contributions for the prior month,” Mr. Smith explained.

The payment made to adult performer Stephanie Clifford, known better by her stage name, Stormy Daniels, by ex-lawyer Michael Cohen on Oct. 27, 2016, was not reported as a campaign expenditure, but even if it was, it would not have been reported until weeks after the election, in a Dec. 8, 2016, Post-Election Report, Mr. Smith explained.

“So the prosecution’s theory, that Trump wanted to hide the expenditure until after the election, makes no sense at all,” Mr. Smith wrote.

“But again, none of this got to the jury, either through testimony or the judge’s instructions,” he argued.

Prosecutors had charged President Trump with 34 counts of falsifying business records, arguing that 2017 payments totaling $420,000 made to Mr. Cohen were done to cover up a conspiracy to influence the 2016 elections through unlawful means.

Unlawful Means

That $420,000 included reimbursement for the $130,000 payment made to Ms. Clifford, and prosecutors had posited three “unlawful means” by which the key players had sought to influence the election. One was a violation of the campaign finance law. Another was that the “grossing up” of $130,000 to $260,000 to account for Mr. Cohen’s tax bracket had misclassified reimbursement as income, causing false taxes to be filed. The third was falsification of business records.

FECA makes it unlawful to make contributions to presidential candidates over a certain limit. An expenditure made in cooperation, consultant, or concert with a candidate can be considered a “contribution.” The contribution limit in 2015 and 2016 was $2,700. The judge also explained the press exemption to FECA.

But FECA allows a candidate to contribute an unlimited amount to his own campaign, Mr. Smith argued in a separate thread, meaning that if the $130,000 had been reimbursed it could not have violated campaign finance law. He explained the official test of a campaign contribution was whether that money would have been spent if there was no campaign. The judge read the same definition to jurors, but without additional real-world examples Mr. Smith argued would have benefitted jurors in their understanding of the law.

In New York City and the state, it is unlawful to knowingly supply or submit false information in connection with taxes, the judge said, even if this conduct does not result in the underpayment of taxes.

Jurors did not need to agree on the “unlawful means,” nor whether the conspiracy was completed or the extent of President Trump’s engagement in such a conspiracy. But to return the guilty verdict, they had to unanimously agree that prosecutors had proven beyond a reasonable doubt that President Trump had the intent to defraud—that he had the conscious objective and purpose to try to conceal a conspiracy.

Reversible Error

Because the jurors were not instructed to be unanimous on the unlawful means, it is not known whether all, some, or none of the jurors decided on their guilty vote based on the belief that campaign law was violated.

Mr. Smith argues this is a reversible error.

“I’m not a criminal law guy. But I do know campaign finance law. The failure to properly instruct the jury on the law would seem to be reversible error,” he wrote.

“There was no illegal contribution or expenditure made, and no failure to report an expenditure. And even if we assume otherwise, the prosecution’s theory made no sense, suggesting no criminal intent.”

In an interview with The Epoch Times last year, Mr. Smith had predicted that a jury would convict President Trump based on a judge’s open-ended instructions, and that the conviction could be reversed on appeal.

Experts speaking to The Epoch Times when the indictment was unsealed had been critical of the decision to prosecute, noting that presidential candidates Barack Obama and Hillary Clinton had paid fines for their campaign finance contributions, whereas President Trump was indicted over a debatable alleged violation.