In early February, following the news that Manhattan District Attorney Alvin Bragg had begun presenting evidence to a grand jury about his role in hush money payments to a porn star just before the 2016 election, former president Donald Trump declared in a Truth Social post that the Federal Election Commission (FEC) had previously “dropped” an investigation into the same issues “because they found no evidence of problems.” Trump’s claim was debunked as “misleading” and “wrong” by PolitiFact, but with the filing of felony charges against Trump over false business records related to his repayment of the hush money, the dysfunctional FEC’s failure to take action against Trump is again being used to attack the merits of the case against him.
Here’s what really happened: the FEC did not acquit Trump of the allegations against him and they did not release any kind of finding that there was “no evidence of problems.” In fact, after assessing the merits of three complaints related to former Trump lawyer Michael Cohen’s $130,000 payment to buy the silence of porn star Stephanie Clifford (a.k.a. Stormy Daniels) ahead of the 2016 election, the agency’s nonpartisan lawyers recommended that the FEC find reason to believe that Trump and others violated several campaign finance laws and proposed an investigation “to determine the extent to which Trump coordinated with, or otherwise directed, Cohen to make the Clifford payment to help his presidential campaign during the 2016 election.”
But the six-person bipartisan agency, which requires four affirmative votes to take most official actions, including launching an investigation, deadlocked on the recommendation, as it frequently does. By voting against the recommendation, Republican Commissioners Sean Cooksey and James “Trey” Trainor effectively killed any further inquiry into Trump’s actions, despite the fact that the agency’s professional staff believed the available evidence was at least sufficient to conduct a formal investigation.
The two Republican commissioners also sought to dismiss all of the allegations against everyone named in the complaints, but that motion failed to gain four votes too. (A third Republican commissioner, Allen Dickerson, was recused and did not vote in the matter.) Afterwards, a majority of the Commission voted to close the file on the three complaints without taking any other action.
In a statement explaining their votes against moving forward with an investigation, Cooksey and Trainor avoided addressing the merits of the allegations against Trump. Instead, they couched their votes as “an exercise of prosecutorial discretion” because they had “concluded that pursuing these matters further was not the best use of agency resources” given the FEC’s enforcement backlog at the time, the amount of time until the statute of limitations expired, and their belief that the Justice Department’s successful prosecution of Cohen over the hush money payment had “adequately enforced and vindicated the Commission’s interests.”
In their own statement, Democratic Commissioners Shana Broussard and Ellen Weintraub, who supported investigating Trump, pointedly observed that their Republican colleagues’ statement was “notably devoid of any explanation that specifically addresses their votes to dismiss the allegations against Trump, the Committee, and the Trump Organization.” For their part, Broussard and Weintraub stated that there was “ample evidence in the record” to justify an investigation but the Commission “did not have enough votes to pursue well-grounded charges that the former President of the United States knowingly and willfully accepted contributions nearly 5,000% over the legal limit to suppress a negative story mere days before Election Day.”
In addition to Michael Cohen’s payment to Stephanie Clifford, the statement of facts supporting District Attorney Bragg’s indictment of Trump describes another hush money scheme involving American Media, Inc. (AMI), the publisher of the National Enquirer, and a $150,000 “catch and kill” payment for the rights to former Playboy model Karen McDougal’s story about her alleged affair with Trump. The FEC also received complaints about the AMI payment and, as in the Cohen case, the agency’s nonpartisan attorneys recommended finding reason to believe that Trump and others violated campaign finance law. But the Republican commissioners again blocked an investigation into Trump, citing prosecutorial discretion because, among other things, the FEC’s attorneys conducted “extensive outside research into news reports, published books, and social media posts” that the Republicans claimed to be unreliable. Their own effort to dismiss the allegations against Trump also failed to gain the four necessary votes to succeed.
In the AMI case, all six commissioners did, however, agree to find reason to believe, based on the non-prosecution agreement AMI previously signed with the Justice Department, that AMI had made a prohibited in-kind corporate contribution with its payment to McDougal. AMI subsequently agreed to a conciliation agreement supported by every FEC commissioner that stated the “payment to Karen McDougal to purchase a limited life story right combined with its decision not to publish the story, in consultation with an agent of Donald J. Trump and for the purpose of influencing the election, constituted a prohibited corporate in-kind contribution.” AMI paid a $187,500 fine in June 2021.
In their statement about the AMI case, Democratic Commissioners Broussard and Weintraub, who supported investigating Trump along with Independent Commissioner Steven Walther, called their Republican colleagues’ votes to pursue AMI but not Trump “inexplicabl[e]” since all of the commissioners “agreed that the payment was coordinated – coordination inherently involves at least two parties – but only three of us voted to hold the persons on both sides of the transaction accountable.” Broussard and Weintraub further stated that by repeatedly deadlocking on recommendations by the agency’s lawyers to investigate Trump the FEC was “effectively turning a blind eye to the apparent misconduct.”
Some confusion about what the FEC did and did not do in response to the Trump hush money complaints may have to do with the intricate technicalities of the FEC’s enforcement process and the sometimes confusing language it uses. The situation has not been helped, however, by the public commentary of FEC commissioner Trainor, who worked for the 2016 Trump campaign but declined to recuse himself from the Stephanie Clifford case.
Despite officially explaining his vote against investigating Trump in the Clifford case as a “prudential” exercise of prosecutorial discretion – a posture that essentially insulated his non-enforcement position from judicial review – Trainor told Bloomberg Law in May 2021 that he didn’t actually think Cohen or Trump violated the law. Trainor came to Trump’s defense again when the twice-impeached former president was arraigned in Manhattan on charges related to the hush money payments and their nexus to campaign finance. First, he tweeted a link to his and Cooksey’s statement in the Clifford matter, saying, the “continued criminalization of participation in, and weponization (sic) of, the political process must stop.” Then, he tweeted an implicit rebuke of the proceedings in Manhattan with a picture of the FEC hearing room and the statement, “This is where campaign finance violations are tried.”
Trainor explained his views in more detail in an interview with the Washington Examiner, arguing, “It’s not a campaign finance violation. It’s not a reporting violation of any kind.” Trainor also asserted that “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 further said of the FEC that it “didn’t find any violation of the law here.”
Someone unfamiliar with how the FEC works and the details of what actually happened in the Trump hush money cases might read Trainor’s words and think that the agency tasked with civil oversight of federal campaign finance laws had looked into the allegations and concluded they were without merit. That is not what happened.
While it’s true that the FEC did not garner the necessary votes in the Clifford matter to find a reason to believe that a violation occurred, the effort by Trainor and Cooksey to dismiss the allegations outright also failed to gain four votes. The agency also did not make a decision to find no reason to believe that a violation occurred, which is an action the agency takes when “the available information does not provide a basis for proceeding with the matter.”
Instead, as has happened in more than 40 cases involving allegations against Trump, including two dozen where the FEC’s professional staff recommended finding reason to believe that a violation occurred, the agency was blocked from taking action by the Republican bloc of commissioners. That may realistically mean that Trump does not have to fear accountability from the FEC, but it certainly does not mean the agency has blessed his actions as lawful.