A pro-Trump political action committee filed a complaint in December with the Federal Election Commission alleging that Hillary Clinton’s campaign laundered $84 million in contributions from big-name donors, such as Facebook Chief Operating Officer Sheryl Sandberg, filmmaker Steven Spielberg, and designer Calvin Klein.
The complaint outlines a money-laundering scheme that violated multiple campaign finance laws — specifically, laws related to limits on individual contributions. This week, the complaint has escalated with a related lawsuit to force the FEC to take up the case.
The U.S. government limits how much money an individual can contribute to a particular candidate or committee in order to combat corruption and to maintain fair elections. Contribution limit computations require ridiculously absurd government mathematics.
The shrewd individuals running the Hillary Victory Fund, or HVF, figured out these campaign mathematics and appeared to legally solicit up to $356,100 from Clinton’s supporters at extravagant fundraisers, such as a dinner at George Clooney’s houseand a concert featuring Elton John. Compare this to the $2,700 limit the government sets per individual contributor in a general election. How did they do it? HVF figured out how to maximize the permissible contribution numbers by calling themselves a “joint fundraising committee” comprising Clinton’s campaign, the Democratic National Committee, and 32 state party committees.
The HVF is now accused of violating campaign contribution limits and engaging in corruption estimated at $84 million. But wasn’t their math correct? Yes, it was, but the clever mathematics may in fact have been a guise for what was really happening, according to the complaint. HVF would receive money from individuals supposedly intended to benefit the Democratic Party as a whole, but instead would quietly distribute the funds almost entirely to benefit the Clinton campaign. To understand the scale of how much was contributed and then illegally disbursed, consider that the mentioned celebrities donated more than $400,000 each to the HVF.
By transferring money back and forth between committees and eventually filtering them into the Clinton campaign, the HVF essentially laundered funds, says Dan Backer, the attorney who filed the complaint and lawsuit. This practice was deemed illegal by the U.S. Supreme Court in 2014.
If the FEC finds the Clinton campaign in fact upended campaign finance laws, it will be the largest campaign finance scandal in American history.
HVF organizers could face a myriad of charges if the FEC complaint were sustained. But what about the individual contributors? If the allegations are sustained, could contributing individuals, including the impressive list of celebrities, like Vera Wang and Seth MacFarlane, be subject to criminal prosecution for their contributions?
Technically, the answer is yes — if the government has the requisite evidence. Under U.S. law, individuals who contribute beyond the permissible limits can only be criminally liable if their violation is both knowing and willful.
The Justice Department has already obtained convictions against other campaign contributors, successfully proving these elements. For example, consider campaign contributor F. Harvey Whittemore, prosecuted by the DOJ for making contributions in excess of the FEC limits. Following a two-week trial, the jury found Whittemore guilty of making illegal donations to the re-election campaign of Sen. Harry Reid, D-Nev., in 2007. In 2014, the DOJ successfully prosecuted Dinesh D’Souza, a former policy adviser to President Ronald Reagan, for illegal campaign contributions to Republican Senate candidate Wendy Long of New York.
Should people who contributed to HVF be legitimately concerned the DOJ will be coming after them? When the FEC found the Obama campaign in violation of contributions in the aggregate amount of $1.36 million, the FEC found no cause to investigate the individual contributors for criminal conduct. But Obama’s team was able to show clerical error and cure the excessive contributions; such a resolution does not appear plausible for HVF.
And the HVF promotional materials described the fund broadly, as a way to “support Hillary Clinton and Democrats up and down the ticket.” They did not appear to disclose that almost all funds would be channeled directly into Clinton’s personal campaign, leaving those “Democrats up and down the ticket” in the cold. Unwitting contributors responding to these ads could not have known their funds would be funneled unlawfully to cause them to exceed their contribution limits — a defense to the willful and knowing elements of the law. Other defenses may exist as well.
Then again, Backer points to reasons that Clinton’s contributors could also be more culpable than Obama’s: “Does Calvin Klein truly care about the Alaska Democratic Party?” he asks. “Or was he trying to curry favor from Hillary Clinton? Which one seems more plausible?”
Did some of them know? How could the fund have grown to $84 million without any of the contributors knowing who was benefiting from their contributions — and without any specific solicitations to that effect? Did any of the individuals contribute knowingly and willfully to HVF in excess of the legal limits?
These are just some of the questions that the DOJ could investigate, if it chooses.
Marina Medvin is a criminal defense attorney in Alexandria, Va.