Free Speech For People v. Federal Election Commission

Free Speech For People filed a February 2018 administrative complaint with the Federal Election Commission. That complaint (which was amended in April and July 2018) presented evidence that President Trump, his campaign, and his personal lawyer and campaign operative Michael Cohen arranged for American Media Inc. (the publisher of the National Enquirer) to pay $150,000 to buy the silence of Karen McDougal, a former Trump mistress, in the 2016 election. Federal prosecutors have concluded proceedings against Cohen, who pleaded guilty, and American Media, which entered into a non-prosecution agreement, for violating the Federal Election Campaign Act.

While Cohen has said that he arranged the McDougal hush money “at the direction of, and in coordination with” the president, Trump and his team have consistently denied Trump’s involvement in the McDougal payoff. Instead, Trump and his allies have publicly accused Cohen of lying to get a better deal from prosecutors.

The investigation is necessary because, even after federal prosecutors have investigated some of the parties involved, critical questions remain unsettled—including the exact nature of President Trump’s role. The Department of Justice is unlikely to press further against Trump or his campaign, so the American public needs an investigation by the independent bipartisan Federal Election Commission.

In June 2019, after over a year of inaction, we filed a lawsuit against the Federal Election Commission for its inaction and unreasonable delay in responding to the administrative complaint. On March 2, 2020, the district court granted the FEC’s motion to dismiss. We are disappointed in this ruling, which did not rule on the merits of our administrative complaint to the Federal Election Commission, but held that the FEC’s two-year delay in handling our complaint did not deprive us of information required to be disclosed under the Federal Election Campaign Act. This case does in fact involve a clear factual question regarding the arrangement of hush money payments to Ms. Karen McDougal. Free Speech For People asked the FEC to resolve whether, as President Trump’s former personal lawyer Michael Cohen says, President Trump himself directed the payments for the purpose of silencing Ms. McDougal during the 2016 election (in which case the Trump campaign should have disclosed the payments as in-kind contributions), or alternatively, as Trump and his campaign have insisted, that Cohen is lying, and there was no involvement from the Trump campaign requiring disclosure under the Federal Election Campaign Act.

Although the federal delay lawsuit has now concluded, our administrative complaint is still before the FEC. The American people deserve to learn the truth about what happened in the 2016 election, and neither prosecutors nor Congress seem inclined to dig any further into the hush money payoff. If Trump and his campaign are truly innocent, they should have the opportunity to exonerate themselves. But if they violated the law to sway the 2016 election, they must be held accountable.

We are grateful to Jessica Kim and Douglas Bunch at the law firm of Cohen Milstein Sellers & Toll PLLC for assistance with this case.

Some questions still remain about the exact role and liability of the Trump campaign or President Trump himself. To be sure, Cohen unambiguously implicated Trump in the McDougal payoff. As Cohen explained in court and in later congressional testimony, he arranged the McDougal hush money “at the direction of, and in coordination with” Trump. Yet unlike the similar Stormy Daniels affair, where Trump has already admitted that he authorized a hush money payment, Trump and his team have consistently denied Trump’s involvement in the McDougal payoff. As Trump insisted on Fox News, “Whatever [Cohen] did, he did on his own.” Instead, Trump and his allies have publicly accused Cohen of lying to get a better deal from prosecutors. House Oversight Committee ranking member Jim Jordan and Freedom Caucus Chairman Mark Meadows even asked Attorney General William Barr to investigate Cohen for perjury.

The Department of Justice is unlikely to tell us more about the role of President Trump or the Trump campaign. Special Counsel Mueller—who enjoyed some independence from direct Department of Justice oversight—felt that department policy compelled him not to reach any conclusions about whether a sitting president committed a crime. The prosecutors who investigated Cohen and American Media are subject to much greater control by the attorney general, so it’s unlikely they will do what Mueller would not. Trump’s campaign (as opposed to Trump himself) might not enjoy quite the same legal immunity, but it seems unlikely that Barr will allow a forceful criminal investigation there either.

The American public deserves a credible investigation and the judgment of a neutral fact-finder to answer these questions. That’s why we need the independent Federal Election Commission to stop its delay and conduct its own investigation. While the FEC is far from perfect, there are two key reasons why a proper FEC investigation is critical.

First, the FEC’s enforcement is civil, not criminal, and there is no bar in law or policy to the FEC investigating a sitting president’s campaign or the president himself. (For example, in 2013 the FEC fined the Obama campaign $375,000, among the largest penalties in the agency’s history.) Trump himself pointed out that most campaign finance violations, including those of President Obama’s campaign, are handled by the FEC as civil cases.

Second, the FEC is bipartisan: its four current commissioners are a Democrat, two Republicans, and an independent. None of them were appointed by President Trump, or have any need to carry his water. By the same token, none of them are what Trump calls “Obama holdovers.” If all four commissioners agree that Trump or his campaign violated the law in the McDougal payoff scheme, it will be hard to dismiss the investigation as a “witch hunt.” And while the FEC has earned a reputation for delay and dysfunction, the Federal Election Campaign Act authorizes lawsuits when the FEC’s failure to act on a complaint after four months (in this case, it has been sixteen months) is “contrary to law.”

Whatever the FEC ultimately decides, the investigation itself will have value to the American public. For example, the law requires that Trump and his campaign receive the opportunity to provide a detailed written response to all allegations. It’s one thing for Trump or his campaign to deny involvement on television or Twitter. It’s quite another to say that it in a written statement to a federal agency. (These responses are confidential at first, but must be made public when the FEC renders its final decision.) And while the FEC usually relies on documents and written submissions, it has the power to compel live testimony under oath.

The American people deserve to learn the truth about what happened in the 2016 election, and neither prosecutors nor Congress seem inclined to dig any further into the hush money payoff. If Trump and his campaign are truly innocent, they should have the opportunity to exonerate themselves. But if they violated the law to sway the 2016 election, they must be held accountable.