FEC Commissioner Blasts DOJ’s Silence as Bragg Contorted Federal Law to Get Trump

If the defendant had been anyone other than Trump, the Justice Department would have zealously guarded its exclusive power to enforce campaign-finance law.

‘T he dog that didn’t bark.” That’s the way I described the collusion of President Biden in the farcical prosecution of his 2024 election opponent, former president Donald Trump, by Alvin Bragg, Manhattan’s elected progressive-Democratic district attorney.

That’s because the dog in question, the Biden Justice Department, did not do what it would have done in any other scenario in which a local prosecutor usurped DOJ’s exclusive authority to prosecute federal crimes: bark about it long and loud until the courts compelled the DA to stand down.

This week, we got confirmation of this unseen but telltale evidence when James E. (“Trey”) Trainor III — a former chairman and current member of the Federal Election Commission — testified before the House Judiciary Committee.

Most of the Trump Camp complaints about suspected Biden collusion with Bragg have centered on the Manhattan DA’s recruitment of Matthew Colangelo, formerly the No. 3 official in the Biden Justice Department, to help head up the prosecution team in the just-completed trial, at which a jury convicted Trump of 34 counts of something.

It has always seemed to me that, as collusion proof, the Colangelo piece is relevant but insufficient. To be sure, it is highly unusual for a top-echelon DOJ official to take what is seen widely (though I think too simplistically) as a “demotion” to be a mere line prosecutor in a state DA’s office. If you’re an ambitious Democratic lawyer, however, it’s better to be the guy who convicted the Orange Ogre than to be just another acting associate deputy assistant coordinating associate attorney general — or some such title that may explain why the doors at Main Justice need to be so wide but whose occupant is obscure.

And if you’re a New Yorker with political ambitions — like Rudy Giuliani was in 1983, when he left a lofty Reagan DOJ post in Washington to become U.S. attorney in Manhattan, his launch-pad to becoming “America’s Mayor” — then an ostensible downgrade to a dingy Big Apple courtroom makes sense. Colangelo landed the big case and six weeks of headline national coverage. Now . . . he’s a star.

Plus, he’s a true believer. Before he got to the Biden DOJ, Colangelo made his bones at the New York attorney general’s office by suing Donald Trump and his business interests. His boss there was a chief deputy AG named . . . Alvin Bragg. When Bragg subsequently ran for Manhattan DA, touting his commitment to using the legal system to bring the Democrats’ arch-nemesis to heel, he was relying on the work Colangelo had done under his supervision. It’s really no surprise, then, that when Bragg decided to become the first-ever prosecutor to indict a former American president, Colangelo was eager to join the party. The anti-Trump ethos of the Biden DOJ surely served as added inspiration, but it’s not like Colangelo needed much more of that.

No, the best evidence of Biden collusion in the Manhattan prosecution of Trump is that the Biden DOJ didn’t lift a finger to stop it.

As I’ve explained, the laws enacted under the Federal Election Campaign Act of 1971 are complex and fraught with First Amendment implications. Because it’s a legal minefield, Congress took pains to keep FECA enforcement under competent federal control — both to stay on the right side of the constitutional protection against restrictions on political speech and to ensure that FECA was applied uniformly throughout the country. Hence, Congress endowed the Justice Department with responsibility to conduct criminal prosecutions under FECA, and vested the FEC with authority to take civil enforcement action.

As Commissioner Trainor explained to the House this week, Bragg’s prosecution of Trump represents “a significant deviation from this established legal framework.” In effect, Bragg “usurped the jurisdiction that Congress has explicitly reserved for federal authorities.”

Trainor pointed the Committee to the scholarship of John Yoo, which is neatly summarized in an essay Professor Yoo penned for National Review (co-authored by Robert J. Delahunty). Under Supreme Court jurisprudence, Yoo and Delahunty relate that the Constitution forbids state officers from prosecuting violations of federal law. Consistent with this line of authority, Trainor persuasively contends that FECA has preempted the field of regulating the spending and public reporting of campaigns for federal office.

Furthermore, in this instance, Bragg acted in the teeth of lengthy DOJ and FEC investigations, after which determinations were made that no enforcement action should be taken against Trump — not even a civil lawsuit. Not to belabor the point, but these determinations were undoubtedly based on that fact that, technically, non-disclosure agreements (NDAs) of the type Trump’s then-lawyer, Michael Cohen, entered into with Stormy Daniels to buy her silence about an alleged 2006 affair with Trump are not campaign expenditures.

The jury in Trump’s trial never learned that. This is because Judge Juan Merchan — who, as Hugh Hewitt observes, had contributed to Joe Biden’s 2020 campaign against Trump in an unambiguous violation of New York law, but nevertheless declined to recuse himself from the case — refused to allow Trump to present expert testimony from former FEC commissioner Bradley Smith. Consequently, the jury’s only information about campaign-spending rules under FECA came from two ill-informed prosecution fact-witnesses, Cohen and former American Media Inc. CEO David Pecker. Well, that plus the oft-repeated ipse dixit of Colangelo and his fellow prosecutors, who insisted that the NDA payments were “unlawful” because they were meant to “influence the election” — which is not the test under FECA.

Merchan’s refusal to allow Trump to present his defense was exacerbated when the judge failed to instruct the jury that, to prove a FECA crime, prosecutors must establish beyond a reasonable doubt that a defendant acted willfully — i.e., that, aware of a legal duty, the defendant intentionally flouted it. Wholly apart from the question of whether an NDA is a campaign expenditure, there was a dearth of evidence at trial that Trump was even thinking about FECA, much less aware of a supposed legal obligation that he was determined to violate, at the time of the actions in question in the case.

Understandably, Trainor finds it astonishing that “Merrick Garland and the DOJ did not intervene in the prosecution of Donald Trump.” The Justice Department is famously zealous in guarding its prosecutorial turf. Trainor elaborates:

I posit that if the DOJ had intervened early to protect the jurisdiction of the FEC and itself to prosecute federal campaign-finance laws, we would not be here [before the Judiciary Committee] discussing this matter today and it wouldn’t be the preeminent topic of the 2024 presidential election.

Addressing Bragg, Trainor told the Committee:

The implications of such jurisdictional overreach and disregard for the principles of federalism at issue are profound. If local district attorneys are permitted to initiate prosecutions based on their interpretations of federal campaign-finance laws, we risk eroding the uniformity and predictability that FECA aims to provide. This could lead to a fragmented enforcement landscape where political motivations and local biases influence the application of laws meant to govern national elections and provide public transparency into the financing of campaigns.

More concretely, the result will be normalization of rogue “the process is the punishment” enforcement: partisan prosecutors exploiting the legal system to impose their novel theories of complex federal statutory schemes in order to enmesh their political opponents in protracted, expensive lawsuits.

Above, I alluded to Trump’s convictions as 34 counts of something. That’s not a joke. Even in Manhattan, at the height of the frenzied six weeks of media coverage, if you asked any 20 people on the street what Trump was on trial for, they couldn’t tell you.

It wasn’t in the indictment. Trump was informed only that he was accused of falsifying business records with fraudulent intent to conceal another crime — the crime was not identified. In his opening statement, Colangelo told the jury Trump was on trial for conspiring to steal the 2016 election — a conspiracy that goes unmentioned in the indictment but that Bragg’s prosecutors claimed succeeded in defrauding the nation out of the Hillary Clinton presidency. (Hillary’s own campaign-finance violations, naturally, went unaddressed by the Manhattan DA.)

If you read the fine-print, Bragg finally settled on alleging that Trump falsified his records to conceal a misdemeanor conspiracy to “promote” his election “by unlawful means.” The unlawful means — the object of the conspiracy in this outlandish theory — was the supposed violation of FECA. Yet, after precluding Trump’s evidence on this key point, and declining to instruct the jury on its essential elements, Judge Merchan — at the urging of Bragg’s prosecutors — told the jurors they needn’t agree on the FECA objective in order to find Trump guilty.

The notion that the Justice Department would sit idly by and let a partisan local prosecutor and a deeply conflicted judge do this to anyone else in the country — knowing that such a scandal might cause Congress to gut the DOJ’s enforcement of these laws — is inconceivable.

To the contrary, the happenstance that the Biden Justice Department let it happen to Biden’s campaign opponent is par for this sordid course.