September 26, 2019
Congress Has Used Campaign Finance for Impeachment Before: Here’s How To Do It Now
Professor of Law at Stetson University College of Law; Brennan Center Fellow
ACS is publishing a series of blogs in a symposium that examines different legal aspects of the impeachment inquiry of President Trump. See also:
- Neil Kinkopf on the mechanics of the impeachment process
- Austin Evers on why obstruction of congressional investigations could be grounds for impeachment
- Gabe Lezra on emoluments clause violations
- Heidi Kitrosser on the president’s abuse of executive secret-keeping powers
- Gabe Lezra on emoluments clause violations
- Barbara McQuade on why Attorney General Barr should recuse himself from the Ukraine affair.
- David Driesen on how executive privilege may not apply in this current scandal.
The Trump 2020 campaign started the day he was inaugurated, which placed him under federal campaign finance regulations for his entire presidency. He was also subject to federal campaign finance laws from the moment he started his campaign in 2015 through his inauguration. From both the 2016 Trump campaign and the 2020 Trump campaign, Congress has several instances of evidence of violations of federal campaign finance laws by Donald Trump. These campaign finance abuses could well lead to impeachment.
The President Nixon Precedent
There is historical precedent for Congress considering campaign finance violations as grounds for impeachment. For example, the Articles of Impeachment against President Richard Nixon included:
He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavoured to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof, and concerning other unlawful activities including … the campaign financing practices of the Committee to Re-elect the President.
This Nixon precedent takes on added urgency now that the House of Representatives has opened a formal impeachment inquiry.
The 2016 Trump Campaign
As I explain in my book Political Brands, President Trump has been named by federal prosecutors as Individual 1 in the charging documents relating to Michael Cohen, Trump’s former lawyer. Cohen pleaded guilty in 2018 to violating federal campaign finance laws in two distinct ways to help secure the silence of two women who alleged that Trump had had affairs with them right before the 2016 election.
Cohen’s first campaign finance crime was paying adult film actress Stormy Daniels (nee Stephanie Clifford) $130,000 for her silence on the eve of the 2016 election. This payment was considered an in-kind donation to the 2016 Trump campaign. It violated the law because it was too large. Cohen could only lawfully give $5400 to support Trump’s candidacy at the time.
The second campaign finance violation that Cohen pleaded guilty to was with respect to facilitating a payment by the National Enquirer to a Playboy model named Karen McDougal of $150,000 to catch and kill her story about her alleged affair with Trump. This violated a federal law called the Tillman Act, which bars corporations from spending in federal elections since its enactment in 1907. The parent company of the National Enquirer, American Media Inc., entered into a non-prosecution agreement with the DOJ to avoid liability for its illegal role in this payment.
According to Mr. Cohen’s statements to his sentencing judge in his criminal case, he executed both money in politics crimes at the direction of then-candidate Donald Trump. If true, this would make Donald Trump an unindicted co-conspirator in Cohen’s campaign finance crimes. Presumably, the only thing preventing the SDNY prosecutors from pursuing Individual 1, was a DOJ memo which states that a sitting president cannot be indicted. Meanwhile as President Trump remains free, Mr. Cohen is presently in federal prison for three years.
The 2020 Trump Campaign
According to statements by President Trump in television appearances and his lawyer Rudy Giuliani in other television appearances including one on CNN with Chris Cuomo, as well as the White House released notes of a call between Mr. Trump and the President of the Ukraine Volodymyr Zelensky, Mr. Trump asked the Ukrainian president for help digging up opposition research on Hunter Biden, the son of Joe Biden, who is running for the Democratic nomination for president. If accurate, this would be an additional instance of violating federal campaign finance law.
Ever since 1966 foreign nationals have been barred from giving contributions of money or things of value to federal candidates including candidates for the presidency. In 2002, this campaign finance law was revised by the McCain-Feingold Bipartisan Campaign Reform Act to make the ban on foreign influence even broader. The 2002 law expanded the foreign ban to political expenditures as well as direct contributions to candidates.
The 2002 law (52 U.S.C. §30121 formerly 2 U.S.C. § 441e) also made it clear that violations involving foreign governments would merit even harsher consequences compared to mere foreign citizens who violated the ban. In the first post-McCain Feingold sentencing guidelines, in 2003, penalties listed were enhanced if the campaign finance offense involved a foreign national (two levels) or a foreign government (four levels). Thus, there is more prison time for a person working with a foreign government than one who is simply a run-of-the-mill foreign national.
The federal ban doesn’t just bar federal candidates from receiving money and things of value from foreign nationals, the law also bans the solicitation of foreign goods or money in U.S. elections.
The notes released from the White House of the Trump/Zelensky phone call indicate that President Trump, a candidate for federal office, was soliciting information about the Biden family from a foreign government—the Ukrainians. This is another violation of federal campaign finance law and could provide additional grounds for impeachment on top of the actions allegedly taken by Mr. Trump during the 2016 campaign to illegally benefit his campaign.
American campaign finance laws are meant to keep corruption at bay and to bolster voters’ faith in the integrity of democracy. The evidence in the public domain seems to indicate that Trump cheated in the 2016 election and, troublingly, he appears to be cheating in the 2020 reelection campaign while sitting in the Oval Office. The Congress is well within historical precedents in holding the president accountable through the Constitutional process of impeachment for these alleged violations of campaign finance law.
Ciara Torres-Spelliscy is a 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 the book, Political Brands (2019).