Former President Trump sits in the courtroom during his trial at Manhattan Criminal Court on May 21, 2024, in New York City. (Michael M. Santiago/Getty Images)
Trump was charged with 34 counts of falsifying business records in the first degree in the case. Manhattan DA Alvin Bragg must prove to the jury that not only did Trump falsify the business records related to payments to former porn star Stormy Daniels, but that he did so in furtherance of another crime – conspiracy to promote or prevent election.
Smith served as an FEC commissioner and chairman between 2000 and 2005. The FEC is the U.S. agency dedicated to enforcing campaign finance laws. His testimony was slated to shed light on prosecutors’ claims that Trump allegedly falsified business records, which is a misdemeanor that has already passed the statute of limitations, in order to cover up an election violation.
Smith lamented on social media that while the prosecution’s witness, Michael Cohen, was allowed to go "on at length about whether and how his activity violated" the Federal Election Campaign Act, he was barred from broadening the scope of his previously anticipated testimony, which "effectively" led to the jury getting "its instructions on FECA from Michael Cohen!"
Michael Cohen is questioned by prosecutor Susan Hoffinger on re-direct during former President Trump's criminal trial in New York City, May 20, 2024, in this courtroom sketch. (Reuters/Jane Rosenberg )
"You read the law and it says that anything intended for the purpose of influencing an election is a contribution or an expenditure," Smith explained. "But that’s not in fact the entirety of the law. There is the obscure, and separate from the definitional part, idea of personal use, which is a separate part of the law that says you can’t divert campaign funds to personal use. That has a number of specific prohibitions, like you can’t buy a country club membership, you can’t normally pay yourself a salary or living expenses, you can’t go on vacation – all these kinds of things. And then it includes a broader, general prohibition that says you can’t divert [campaign funds] to any obligation that would exist even if you were not running for office."
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"We would have liked to flag that exception for the jury and talk a little bit about what it means," Smith said. "And also, we would have talked about ‘for the purpose of influencing an election’ is not a subjective test, like ‘What was my intention?’ – it’s an objective test."
Bradley Smith, a professor at Capital University Law School, testifies during a House subcommittee hearing on lobbying reform on March 1, 2007. (Bill Clark/Roll Call/Getty Images)
"D.A. Bragg in this case waited, I think it was almost a year, before even bringing the charges. And I think that's because the charges were flimsy. And as you point out, they've been you know, the prior D.A. had said, 'No, we're not going to bring this.' The DOJ said no. The Federal Election Commission said no. And when he got increased political pressure, he brought the case," Smith told Fox News host Mark Levin earlier this year before the trial kicked off.
Smith also wrote an opinion piece published by the Federalist last month, when the trial kicked off, arguing that Bragg’s office had "one big problem" with the case.
Rhona Graff testifies as former President Trump watches during his criminal trial on April 26, 2024, in this courtroom sketch. (Reuters/Jane Rosenberg)
"That’s because, in campaign finance law, these types of expenditures are known as ‘personal use.’ FECA specifically prohibits the conversion of campaign funds to personal use, defined as any expenditure ‘used to fulfill any commitment, obligation, or expense that would exist irrespective of the candidate’s election campaign,’" he wrote.
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Smith continued on X Tuesday that Bragg’s case hinges on prosecutors proving that Trump tried to influence an election through "unlawful means," but the office has to rely on their own evidence as the DOJ and FEC both denied pursuing the case.
Judge Juan Merchan in his chambers, March 14, 2024, in New York. (AP Photos)
"If that's the case, isn't it entirely relevant (not dispositive, but relevant) to the jury's fact-finding on that question that neither DOJ nor FEC chose to prosecute? But Judge Merchan won't allow that in," he wrote. "He will, though, allow in numerous references to Cohen's guilty plea, and allow Cohen to testify as to how he thinks he and Trump violated FECA – though it appears that Cohen is a dunce about campaign finance laws."
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The defense team rested Tuesday, with Merchan dismissing the jury until after Memorial Day. Closing arguments are anticipated to kick off next Tuesday following the holiday.
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