Why DOJ can prosecute Trump, others over payment issue

Pratt on TexasI will try something which is near-impossible; I will give a primer on why the expenditure of funds by Trump or third parties for non-disclosure deals can be problematic and lead to prosecution.

It begins with the Federal Election Commission being quasi-independent and the Justice Department being an Executive Branch agency. When agencies under the Executive Branch read the same law, or rule, differently the dispute is settled by someone higher in the branch including, at times, the president directly. But the FEC is one of these progressive-era quasi-independent agencies and thus floats along on its own.

The FEC ruled that former Democrat presidential nominee candidate John Edwards did not violate the law in his hush-money payment case because it was something one might have been likely to do even if not a candidate for office for any number of reasons.

In the same case the Justice Department read the same law very differently, and with no intra-branch conflict with the FEC existing, made a finding that the Edwards payment should have been reported and thus was a violation. Justice prosecuted Edwards, a judge allowed such, and the judge allowed that count to go to the jury. That isn’t a direct finding on the campaign law but it is implicit court approval of the DOJ’s interpretation of the law by allowing a jury to find someone guilty on the charge. That the Edwards case fell apart with the jury and was not re-tried has no bearing on this particular issue.

This entire conundrum is also a lesson on why creating so-called “independent” agencies are generally a bad idea.

The DOJ can, with a previous agency finding on its reading of the law along with a court allowing a person to be tried under that reading, confidently bring a case against Trump and his campaign.

Doing so does not mean DOJ officials are right in their interpretation of the law or that they will win such a case. But it is possible to bring a case because the DOJ is not subject to Federal Election Commission rulings even if us lay folk wrongly assume that it, the FEC, is the authority on what campaign finance laws and rules mean.

This entire conundrum is also a lesson on why creating so-called “independent” agencies are generally a bad idea.


Update: This story adds more.

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