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Yes, Trump’s PACs really can pay his legal fees

Richard Briffault, Columbia University, The Conversation on

Published in Political News

Campaign finance data released at the end of January 2024 revealed that Save America, a political action committee founded and controlled by former President Donald Trump, spent more than US$50 million in 2023 on legal fees resulting from Trump’s multiple criminal and civil cases.

OpenSecrets, a nonpartisan nonprofit tracking campaign funds, found that other Trump-aligned organizations also paid a combined $10 million in additional legal fees for Trump in 2023.

Though I have spent much of my career as a scholar of campaign finance law, I’m not certain whether that use of campaign donations is legal under federal election law. It might be; it might not be. But if it’s not, I deem it unlikely that the Federal Election Commission, which enforces campaign finance laws, would take any action.

As a general rule, campaign contributions may be used only for election-related expenses. They are not for the personal use of a candidate or federal officeholder. Federal regulations define “personal use” as “any … expense of any person that would exist irrespective of the candidate’s or duties as a Federal officeholder.” In other words, a candidate cannot use campaign funds to pay her daughter’s college tuition or the mortgage on her personal residence.

In several advisory opinions, the FEC has repeatedly allowed campaign funds to pay legal expenses that are connected to an election campaign or officeholder action, such as litigation to get on the ballot or defense against a criminal investigation concerning whether the candidate misused his office.

Many of Trump’s legal cases, and therefore their expenses, do relate to campaign activities – such as his efforts to challenge the results of the 2020 election. Others relate to his role as an officeholder or former officeholder, such as the allegedly criminal retention of classified documents at Mar-a-Lago.

 

Even the New York state criminal case about paying hush money to former porn actress Stormy Daniels is election-related: It involves an alleged scheme to prevent potentially damaging stories about Trump’s personal life from becoming public during his 2016 presidential campaign.

However, the civil lawsuits brought by E. Jean Carroll, in which Trump was found to have sexually abused her and then to have repeatedly defamed her, are different. They do not involve either an election or Trump’s use of office. So I would expect that his legal fees for those cases would be considered personal.

Also likely personal is the civil case in New York alleging business fraud, in which he has been ordered to pay more than $350 million in penalties.

But it appears that Save America has been paying legal fees in those cases, too. Those payments may be legal under a different provision of federal campaign law. The prohibition on personal use of campaign funds applies most clearly to the funds in the candidate’s own campaign account. But federal election law also allows a candidate to set up a separate fund, known as a “leadership PAC,” which can be used for election-related activities other than support for their own campaign.

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