Paying Defense Lawyers With Campaign Cash is Better Than Secret Slush Funds

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A "dark" roll of hundred dollar bills

On July 20, 2018, the Republican National Committee and Donald J. Trump for President, Inc. will file disclosure reports with the Federal Election Commission. These filings will almost certainly reveal that both organizations are paying substantial sums to law firms for various kinds of legal work. Based on previous reporting and admissions of the RNC and Trump campaign, some of that money will likely be paid in part to cover the legal fees of individuals being interviewed or investigated in Special Counsel Robert S. Mueller III’s probe into illegal Russian activity in the 2016 election.[1]

Although reports that campaign cash is being used to pay for Mueller probe-related legal fees have prompted some commentators to express ethical concerns, these criticisms miss an important point: paying these fees out of campaign funds keeps these payments aboveboard, and it’s important they stay that way.

To be clear: as a legal matter, campaigns and party committees can undoubtedly pay the attorneys’ fees of individuals involved in litigation relating to their work on that campaign. The applicable statutes and regulations, found in 52 U.S.C. § 30114 and 11 C.F.R. § 113.1, are straightforward on that point. Every major campaign pays lawyers, just as they pay sign-makers, hotels, and airlines. Like payments to those vendors, legal fees paid by a campaign or party committee must be disclosed to the FEC.

In addition, every cent contributed to Donald J. Trump for President, Inc. and the RNC is and must be disclosed. There are limits on how much one person can give to either organization (for example, no one can give more than $2,700 per election to the Trump campaign), and none of these contributions can come from corporations or foreign nationals.

Because the funds are limited in source, limited in amount, and fully disclosed to the public, payments from a campaign or party committee to lawyers aren’t just legal: from an ethics and transparency standpoint, they’re far better than the alternatives. Asking campaign workers—many of them paid very little—to cover their legal fees out of their own pockets would be untenable. Important campaigns frequently spawn litigation. If campaign staff and candidates who found themselves defending against such suits had to pay their own way, only the ultra-wealthy would dare to enter the political arena.

So if campaigns are not to be a plutocrats’ game, individuals involved in litigation relating to their campaign work must have their legal expenses covered by someone. Of the possible sources of those legal fees, campaign money is the most transparent.

In contrast, the Patriot Legal Expense Fund Trust (PLEFT)—set up as a 527 political organization in February 2018 to help those caught up in the Mueller probe—either has yet to raise any money (which seems unlikely), or appears to be ignoring its own (partially self-imposed) disclosure requirements. Even if PLEFT were disclosing its donors, the organization can accept contributions from LLCs that mask the true identity of individuals who wish to contribute eye-popping sums.

Other legal defense funds lack even the minimal disclosure requirements placed on PLEFT. For example, a variety of Trump associates have set up GoFundMe pages, where anyone can make contributions anonymously and any transparency exists only because of the design of GoFundMe’s platform, not because of any law or regulation. Other online platforms obfuscate the source of donations even more. One website, for example, features a black-and-white photo of Trump confidante Roger Stone, a donation button, an address in Tampa, FL, and little else. Contributors to these “funds” have no way of knowing how their money is being spent, and the general public has no way of discovering the identities of anonymous contributors. These crowdsourcing efforts demonstrate that the alternative to paying Mueller probe-related legal fees with disclosed, transparent campaign money is a network of shadowy slush funds, an option hardly conducive to avoiding corruption and ethical quagmires.

At first glance, paying Trump associates’ Mueller probe-related legal fees out of campaign coffers might seem like yet another other example of the misuse-of-funds scandals that have defined this administration. These payments are not only lawful, they also provide more transparency and accountability than the alternatives. Of all the legally and ethically questionable activities reported on during the course of the Mueller probe, this is not one.

 

[1] Because FEC filings do not disaggregate payments to law firms by the type of legal work done, the July 20 filings will not reveal definitively if and how much the RNC and Trump campaign are paying in Mueller probe-related legal fees. This analysis is based only on published media reports of such payments.

Adav directs CLC’s litigation in the federal district courts and previously served as Associate General Counsel of the Federal Election Commission.