The day before Donald Trump was indicted last week for trying to obstruct the 2020 election, his FEC reports revealed the extent to which he uses his donors’ money, rather than his own, to pay his lawyers.

In the first half of 2023, Trump’s Save America PAC spent over $40 million of small donor money on Trump’s legal defense. Since 2022, the PAC has spent $56 million on his legal fees, more than any other expense category.

Trump’s fundraising follows a pattern. Following the FBI’s search of Mar-a-Lago, Trump’s PAC raised $1 million per day as Trump railed that retrieving national security documents was “political persecution.” Trump also collected hundreds of millions in donations to a non-existent “Official Trump Defense Fund” by repeatedly claiming the 2020 election was stolen, a claim he will now amplify. Trump supporters have now donated over $500 million to return Trump to the same office he tried to subvert.

The Big Rip-off

Trump’s 2024 re-election campaign presents a bombastic blend of ego, retribution, and misinformation that has monetized his criminal exposure. As his legal peril increases, so does his campaign war chest.

Rather than undermine his candidacy, his assorted legal challenges have elevated him to political martyrdom, as his mounting indictments invigorate a fact-challenged base cocooned by right-wing media.

Trump’s felony charges in New York, his latest federal indictment in Washington, his indictment in Florida, and looming charges in Georgia prompted GOP contender Will Hurd to recently observe at the GOP’s Lincoln Dinner that Trump is running for president to stay out of prison.

Hurd was booed for stating the obvious.

Using a Poor Man’s Dollar to Pay a Billionaire’s Bill 

Despite the staggering sums Trump’s PAC has spent on lawyers, the FEC has issued no definitive ruling as to the legality of using donations to pay his legal defense fees.

Bracketing the ethics of paying Trump’s witnesses’ legal fees and thus influencing their testimony, under the Federal Election Campaign Act, campaign funds may be used for “ordinary and necessary” expenses that arise under the duties of an individual who is holding or seeking Federal office. The Act prohibits using donated funds for ‘personal use’ to pay an expense that would exist irrespective of the candidate’s campaign or duties, like a mortgage or tuition, because those bills do not arise from holding or seeking office.  

Using donations to pay legal fees, however, falls into the “maybe” category.

The FEC’s ‘Irrespective Test’ 

The legality of using donations to pay legal fees will likely be determined in an FEC advisory opinion on a case by case basis, using the FEC’s “irrespective test,” which asks whether the legal challenge would have arisen irrespective of holding or seeking office.  In several advisory opinions, the Commission has said that campaign funds may be used to pay for up to 100% of legal expenses related to campaign or officeholder activity, where such expenses would not have occurred had the individual not been a candidate or officeholder. 

Although Trump was a president of many firsts, including the first to be found guilty of sexual assault, the FEC has approved using campaign donations for litigation expenses where the candidate/officeholder was the defendant and the litigation arose directly from campaign activity; and has approved using donated funds to defend against investigations into to the candidate/officeholder’s role as a candidate or officeholder.  

Legal Ambiguity May, Yet Again, Give Trump Cover

Applying the FEC’s test to Trump’s assorted legal challenges could deliver questionable results. In the E. Jean Carroll case, for example, the irrespective test gives Trump an argument that he would not have been the target of her successful sexual assault and defamation suit, had he not held the highly visible office of President. Never mind that he bragged about assaulting women’s genitalia in 2005, long before seeking office.

In the Mar-a-Lago documents case, Trump could argue that he wouldn’t have taken the beautiful papers if he hadn’t been provided access to them to begin with, the whole thing is a political witch hunt to block his candidacy, pass the donation plate.  In Georgia, Trump’s request to the Secretary of State to “find” 11,000 non-existent votes would not have occurred but for Trump’s campaign. On his latest indictment for the J6 coup attempt, in Trumpspeak, he would not have assembled the lovefest to stop a stolen election had he not been the president from whom the election was stolen.

To people outside the MAGA cult, using donated funds to defend an ongoing pattern of criminality is galling. It will be interesting to see if the FEC teases out a crime/fraud exception to protect the public. Otherwise, as Will Hurd suggested, Trump’s campaign is yet another instrument of fraud designed to insulate him from culpability while making other people pay for his crimes.

Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.