If the district attorney of Manhattan wanted to start prosecuting federal election crimes, he might have wanted to check in with the office that actually handles that.
Then, DA Alvin Bragg would have found out exactly why the Federal Election Commission had decided there wasn’t a case worth pursuing against former President Donald Trump in the matter of payments to porn star Stormy Daniels.
And the decision wasn’t even close, according to FEC member James “Trey” Trainor, a Trump appointee who served as the commission’s chairman in 2020.
“It’s not a campaign finance violation. It’s not a reporting violation of any kind,” Trainor told the Washington Examiner in an article published Wednesday, a day after the legal and media circus of Trump’s arraignment in Manhattan Criminal Court in New York City.
Bragg, Trainor said, is “really trying to make a square peg fit into a round hole.”
Well, twisting the law to suit his political agenda has been pretty much how Bragg has rolled ever since he took office in January 2022. Immediately after being sworn in, he issued a notorious “Day One Letter” that declared that henceforth, the DA’s office would downgrade felony charges to misdemeanors in many cases.
In an armed robbery case, for instance, the felony would become a misdemeanor if a weapon were displayed in the course of a robbery but did not “create a genuine risk of physical harm.” (Not to digress, but actual victims of an armed robbery — turning over their money and possessions to a man with a knife or a gun on a street corner at night — might have a different perception of what constitutes “genuine risk” than an Alvin Bragg minion in the Manhattan DA’s office reading police reports during business hours.)
But to indict Trump on spurious felony charges, Bragg had to twist the law in the opposite direction — from misdemeanor to felony. And that, Trainor told the Examiner, was a twist too far.
On Tuesday, Trainor published a Twitter post with a photo of the FEC hearing room. “This is where campaign violations are tried,” he wrote.
This is the @FEC hearing room. This is where campaign finance violations are tried. pic.twitter.com/OJFxVMiiUl
— Trey Trainor (@TXElectionLaw) April 4, 2023
The picture made two points. The first is that the FEC — not a local district attorney — has jurisdiction over allegations of violations of federal campaign finance law. The second is the emptiness of the room itself, symbolic of how empty Bragg’s case is.
As powerful as that image is, Trainor made his points more explicitly to the Examiner, dismantling the DA’s indictment with a combination of law and logic that seems to be missing from the Manhattan DA’s office lately (not to mention the Democratic Party in general).
The grand jury process that produced the investigation relied heavily on Michael Cohen, a former Trump attorney turned stooge for the prosecution. Cohen has pleaded guilty for his role in making the payments to Daniels as part of a plea deal.
For many liberals, that guilty plea strengthens Cohen’s position as a witness against Trump, but as National Review’s Andrew McCarthy, a former federal prosecutor, pointed out in an invaluable piece on Monday, it does nothing of the kind.
From a legal point of view, Cohen’s plea ended the matter as far as the FEC was concerned, Trainor said.
Also, he said, the connection between the payments to Daniels — from an alleged sexual encounter with Trump in 2006 — and the 2016 election aren’t even clear. The payments were made in October 2016, obviously the height of the campaign season, but that doesn’t necessarily translate into their being election-related.
“It has to be something that anybody on the street can look at and say the only reason you did that was to influence the campaign,” Trainor told the Examiner.
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“There’s a lot of reasons that he could have done it that aren’t related to him being a candidate for president, and so therefore, it wouldn’t have met the standard as campaign expenditure under federal law.”
That’s probably the weakest part of the argument that Bragg is off base. A normal person on the street could well look at that October 2016 timing and say, “Obviously, it’s election-related.” But the normal person on the street would have to think back to the 2016 election and what Trump had already been through thanks to Democratic mud-slinging.
No Trump supporters were under the impression the thrice-married billionaire was a choirboy when they backed him to beat the corrupt-to-the-bones Hillary Clinton. By that point, it’s doubtful that any voters considering Trump over Clinton would switch back because of a story about Stormy Daniels. Would an allegation from a porn star about a decade-old tryst seriously have mattered as much to Trump as, say, his wife finding out about it?
From a technical point of view, moreover, the Daniels payments were irrelevant to campaign finance reporting because the payments would not have had to have been reported until months after the 2016 election, Trainor told the Examiner.
In other words, they could have been stamped “HUSH MONEY PAYMENT TO XXX PORN STAR FOR 2006 FLING” in big red letters and it wouldn’t have affected a single vote that had already been cast.
Finally, the statute of limitations was near expiring, Trainor told the Examiner. That made the whole thing as good as moot.
It’s worth stressing that these arguments aren’t new — something made up to meet the development of the Bragg indictment. Trainor had already put them in writing two years ago, with fellow FEC member Sean J. Cooksey (another Trump appointee) in an April 2021 summation of why the FEC would not pursue the allegations.
The FEC, of course, isn’t the only body with authority over federal campaign finance law enforcement to take a pass on the Trump-Stormy Daniels case.
The Justice Department has done so as well — both during the Trump presidency and in the 27 months since under President Joe Biden, as McCarthy noted in his National Review piece.
For Trainor, the Bragg case is a dead end.
“I don’t know how you get around the evidence that both the Department of Justice in their investigation of the federal campaign finance issues and the Federal Election Commission in their ultimate jurisdiction over campaign finance issues, neither of them found there to be any violations whatsoever,” he told the Examiner.
“And I think the jury is going to see that and they’re going to have to rely upon the fact that both the law enforcement experts and the civil enforcement experts, as far as campaign finance are concerned, didn’t find any violation of the law here.”
With almost every minute that passes since the ludicrous Trump indictment was unsealed, it’s become clearer that Bragg is playing a hand as empty as the hearing room in Trainor’s tweet.
And it was on an empty case like this that the Manhattan prosecutor — a man previously notorious for turning felonies into misdemeanors — is basing his history-making indictment of a former president on trumped-up felony charges.
The next time Bragg wants to go from not-prosecuting crimes in his own jurisdiction to making up federal crimes for his office to pursue without authority, he might want to check in with the men and women who actually know the law.
He might find out a picture is worth a thousand words.
