In the days after the FBI searched former President Donald Trump's residence at his Mar-a-Lago club in Florida, his political action committees raised millions of dollars from supporters.
That haul, which was reported by The Washington Post, is a major boost to Trump's PAC fundraising, which was sagging in July. Still, at the end of last month, the Save America PAC, Trump's largest PAC, had a whopping $99.1 million on hand — and the millions raised after the Aug. 8 FBI search added to the former president's massive war chest.
Regulations from the Federal Election Commission and experts on finance law say that there are almost no restrictions on how Trump spends the PAC money while he is not a candidate for president. However, the money raised can't be used for a potential 2024 campaign if Trump decides he'll run again, experts say.
But Trump doesn't exactly have a history of following FEC guidelines, and there hasn't been much enforcement despite dozens of campaign finance complaints.
Since 2016, there have been upward of 40 complaints against the former president — the FEC hasn't acted on any of them, including the case of Trump's lawyer Michael Cohen paying off Stormy Daniels during the 2016 election. It's bringing up questions on whether Trump could be held accountable for any potential violations in the future.
The commission is often split along party lines
The FEC comprises three Democratic commissioners and three Republican ones, all of whom are nominated by the president and confirmed by the Senate. Four votes are required to move any finance violation claim forward, but in recent years the commission has been deadlocked along party lines, particularly in cases that involve Trump.
"The stalemate on significant enforcement matters has been an ongoing concern for quite a long time," Democratic FEC Commissioner Ellen Weintraub told NPR. "I don't think we are doing the job that Congress set us up to do. I don't think we're doing an appropriate job of enforcing the law."
Several former FEC officials who are now working at the Campaign Legal Center have also said current FEC guidelines are "ineffective" and they are advocating for legislative change.
In some recent complaints that have not been pursued by the FEC, Republican commissioners argued that moving forward would not be "the best use of agency resources." Democratic commissioners, including Weintraub, argued their Republican counterparts are "damaging" the campaign finance process.
"We used to work better at finding four votes to pursue enforcement matters. ... Commissioners used to work harder at finding a path forward," Weintraub said, adding that the commission didn't always act in a partisan manner. "I do worry there is now a new partisan tinge."
Trump is teasing a 2024 run but not officially announcing
Since Trump has not formally announced whether he will run for president in 2024, his PACs are not subject to campaign finance restrictions — though they still have to disclose things like donor information.
"There's almost no restriction on it, because it's not campaign money. He cannot put it into his campaign, that's one thing he can't do with it ... but there's no rule, law, or regulation restricting the use of those funds," Ken Gross, a former associate general counsel at the FEC, told NPR.
In other words, the PAC money can be used for Trump's rallies around the country and other business expenditures. But if Trump announces he's running and spends $5,000 in furtherance of his campaign for office, restrictions kick in. Trump would then have to start raising campaign money in a campaign account, and the FEC says he would not be able to use that money for personal use.
"If in fact he goes out there and says, 'I'm going to be next president of the United States,' or 'I'm running for president,' or 'vote for me' ... he is now furthering his candidacy," Gross said.
At that point, any money that Trump spends, whether it's on travel or TV ads for his campaign, would then be considered a campaign expenditure and would have to come out of his campaign account.
But Trump is being somewhat ambiguous about a potential run for president. He hasn't announced a campaign, but he's hinted at it.
Gross said Trump's vagueness could be intentional in order to avoid campaign finance restrictions, but he added, Trump "can't have it both ways. He can't be claiming he's not a candidate for FEC purposes and then talk about being a candidate."
There is a bit of a loophole, though, where Trump could say he is "testing the waters." In other words, he's making expenditures from his existing PACs to determine his viability as a candidate, but hasn't officially announced. Gross notes that if Trump did announce he was running, he'd have to go back and file those specific expenses used from his PAC as campaign expenditures.
A spokesperson for Trump and for the Save America PAC did not immediately respond to request for comment.
The DOJ could take criminal action, but it's not a usual move
Gross points out that even if the FEC doesn't end up acting to enforce any campaign finance violations, there's a back-and-forth process that could take place, which can be laborious.
For example, a complainant could sue the FEC for failing to act on a violation. If a judge thinks there's a clear violation, they could take the case back to the FEC and tell them to find a violation. If the FEC still doesn't act, a judge could give a private right to action, which would mean that the complainant could sue the violator directly, without the commission's involvement.
It's a difficult and rare process, Gross said, but the Campaign Legal Center has filed several lawsuits. And a pro-Democratic PAC, American Bridge, did recently file a lawsuit against the FEC for failing to act over Trump teasing a 2024 bid for the White House.
Another option is for the Department of Justice to take criminal action.
"They could bring a criminal case against Trump and it's a felony statute. But those are rare. But if it was absolute knowing and willing violation of the law, that is a potential as a possibility," Gross said.
The problem, Gross points out, is that the DOJ stepping in to take criminal action may come across as a direct political attack on Trump during an election.
"Whether the DOJ would go there ... I don't know. Plus, this would go right to the heart of his candidacy," Gross said. "It's possible legally but politically, probably not likely."
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