The Volokh Conspiracy

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Donald Trump Has a First Amendment Right to Pay Hush Money to Support his Electoral Ambitions

The liberal news media buys in to the NY state district attorney's unconstitutional prosecution of Donald Trump


Every day breathless articles appear in the New York Times, and through-out the liberal media, about Donald Trump's allegedly lawless payment of hush money to help out his 2016 presidential campaign. In fact, Donald Trump has a First Amendment right to spend money, as does the Trump Organization, to further his electoral ambitions. In Buckley v. Valeo, the Supreme Court wrongly upheld expenditure limits on how much non-candidates could spend on elections, but it rightly held that wealthy individuals like Donald Trump could spend as much as they wanted to spend of their own money on election campaigns. And, they can spend their money on hush money payments, television or radio advertisements, or in any other legal way that would further their own campaigns or electoral ambitions.

To the extent that Trump was spending his own money in the 2016 presidential campaign, he had a First Amendment right to do that under Buckley v. Valeo. To the extent he was spending Trump organization money, Trump also had a First Amendment right to do that too because the campaign expenditure limits of Buckley v. Valeo are now, and have always been, unconstitutional. Buckley v. Valeo should be overruled insofar as it upheld as constitutional any limits on spending money by anyone or by any organization to influence the outcome of an election.

The accounting entries of the hush money payments as "legal expenses" simply reflects the fact that Trump did not believe the allegations against him were true, or that he was protecting his family, or that he considered the payoffs to extortionate porn actresses and others as being settlements that did not confirm his guilt but that helped his 2016 campaign, which they did. The allegedly inaccurate accounting entries are at most misdemeanor offenses. The government in the NY State District Attorney's prosecution does not accuse Trump of embezzling funds from his organization or of fraud, nor could it do so.

Donald Trump should appeal any verdict against him in the NY State criminal case to the U.S. Supreme Court. He should assert his First Amendment rights under Buckley v. Valeo and to the extent that Buckley would allow a judgment against Trump to stand, Trump should ask that the entire edifice of campaign expenditure limits set up in Buckley v. Valeo be overruled.  Legal experts know that Buckley v. Valeo was "a derelict on the waters of the law" even before the recent appointments to the Supreme Court, and in Trump v. New York the U.S. Supreme Court should declare Buckley v. Valeo to be dead on arrival.

All that Trump has to do to win this farcical criminal case against him is to assert his First Amendment rights in every level of New York State's court system asking at every step along the way that Buckley v. Valeo be overruled insofar as it forbade the expenditures in question. Obviously, no-one can spend money to bribe election officials or engage in other illegal conduct. But, nothing Trump has done is remotely illegal. Trump had a First Amendment right to make the hush money payments that he allegedly made in 2016.