Will the Justice Department Investigate the Trump Foundation?
Posted June 15, 2018 9:49 p.m. EDT
WASHINGTON — Election law experts from across the political spectrum largely agreed that the New York attorney general made a compelling case this week that President Donald Trump’s campaign and his charitable foundation violated federal campaign finance laws during the 2016 election.
What they could not agree on, though, was whether any federal investigators will pick up the case.
The allegations were detailed in filings released Thursday by the attorney general, Barbara D. Underwood, as part of a lawsuit her office brought in state court accusing Trump and his three oldest children of using the Donald J. Trump Foundation for political and business purposes. That constituted a violation of New York state laws governing charities, as well as federal tax and election laws, the lawsuit charged.
But Underwood’s office lacks the authority to prosecute federal matters. So, when she filed the lawsuit, she simultaneously sent letters to the Internal Revenue Service and the Federal Election Commission asking those agencies to investigate the alleged violations of federal tax laws and campaign finance laws, respectively.
And, for good measure, on the letter to the FEC, she copied two top officials from the Justice Department’s Public Integrity Section, which is charged with investigating and prosecuting criminal violations of election laws.
The copying of the letter to the Justice Department attracted wide notice in Washington’s close-knit election-law bar, as did the claim in the lawsuit that the use of the Trump Foundation to benefit the Trump campaign “was willful and knowing.”
That phrase, combined with the “cc,” appears to be an effort to set the stage for a criminal election-law prosecution. That would be handled by the Justice Department rather than the FEC, which can only levy civil penalties and fines.
“The evidence collected by the attorney general is so compelling that she was able to make a case that the Trump Foundation knowingly and willfully violated the source prohibitions and dollar limits of the Federal Election Campaign Act,” said Brett Kappel, an election lawyer with the firm Akerman who has represented clients on both sides of the aisle, including former Texas Rep. Ron Paul’s 2012 campaign for the Republican presidential nomination.
The referral to the Justice Department cheered advocates for more aggressive enforcement of election laws, who have bemoaned what they see as the FEC’s plunge in recent years into a state of near-constant deadlock and almost complete toothlessness. The agency, which by statute is composed of six members evenly split between appointees from both parties, has two vacant seats, leaving it with only four commissioners. That’s the number required to advance a complaint or referral for formal investigation, meaning that the two Republican appointees would have to join the two Democratic counterparts to proceed with an investigation of a sitting Republican president — a highly unlikely outcome.
“There are certainly grounds to open an investigation on the merits,” said Paul S. Ryan, vice president for policy and litigation at the campaign finance advocacy group Common Cause. “But the FEC has been dismissing complaints that I think are much stronger slam-dunks than this.”
The Justice Department, on the other hand, has ramped up its prosecutions of election law violations in recent years, pursuing high-profile cases against operatives for misleading fundraising and misappropriating political committee funds.
Campaign finance violations are among the charges brought by Robert Mueller, the special counsel investigating Russian meddling in the 2016 presidential election, against 13 Russians and three companies that tried to boost Trump’s campaign.
And the Justice Department is investigating Trump’s longtime attorney, Michael S. Cohen, for possible violations of campaign finance laws related to payments to two women who said they had affairs with Trump.
While the FEC mostly directs enforcement actions at campaigns and their treasurers, the Justice Department can bring criminal charges that can carry jail time against anyone involved in a campaign finance violation.
If the Justice Department takes up the referral from the New York attorney general, Democrats and government watchdog groups can be expected to call for Attorney General Jeff Sessions to recuse himself — as he did from the investigation of Russian meddling — because of his involvement in the Trump campaign. The campaign finance violations alleged by the New York attorney general primarily center on a fundraiser for veterans’ groups held by the foundation in Iowa before the state’s pivotal caucuses, which fell on Feb. 1, 2016. The fundraiser — which had many trappings of a campaign rally, including a speech by Trump skewering his opponents and celebrating his own accomplishments — raised more than $2.8 million for the foundation for distribution to other charities benefiting veterans.
But records the attorney general obtained show that officials for Trump’s campaign, including digital operative Brad Parscale, who is now the manager of Trump’s re-election bid, were involved in planning the fundraiser and raising money for it. Other officials, including the campaign manager, Corey Lewandowski, were involved in directing how and when the money was disseminated to the veterans’ groups, according to emails obtained by the attorney general.
In one email, Lewandowski wrote to a foundation official, “I think we should get the total collected and then put out a news release that we distributed the $$ to each of the groups.” He later sent a list of veterans’ groups, and asked that some of the disbursements be made in Iowa in the days before that state’s presidential nominating caucuses, which mark the kickoff of the primary calendar.
The activity around the fundraiser ran afoul of campaign finance laws on two main fronts, Underwood’s office charges. The $2.8 million raised for the foundation amounted to illegal and undisclosedin-kind donations that exceeded the federal contribution limit of $5,400 per election cycle per person. And Underwood’s lawsuit says that the communication between the campaign and the foundation represented a violation of rules barring campaigns from coordinating with nonprofit groups or other entities in the spending of funds. The referral to the FEC also asks it to investigate a $25,000 donation made by the foundation in 2013 to a nonprofit that was devoted to helping the political prospects of an ally of Trump.
“The letter is pretty devastating in terms of building the case that bedrock campaign finance principles and laws were violated,” said Meredith McGehee, executive director of Issue One, a nonprofit government ethics group.
Republican campaign finance lawyers mostly declined to comment for attribution on the case, though several said that the best defense for the Trump Foundation and campaign may be that they simply didn’t know the laws, and therefore couldn’t knowingly and willfully violate them.