For a candidate to break corporate-spending rules in a matter like this, involving friendly media organizations and embarrassing details about his personal life, is no mean feat. The relevant law is generally favorable to the candidate. Trump still managed to violate it.
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There is, first, the question of what kind of help the candidate was seeking. As the case of the former vice-presidential candidate John Edwards demonstrated, candidates might successfully argue that in drawing on supporters’ funds to help them hide affairs, no political contributions were made or received, because the motive was personal, not political. When news first surfaced about Trump’s payments to the adult-film actress Stormy Daniels, one might have assumed that some similar argument could be available to Trump. Yet according to the direct testimony of those with whom he conspired, the Journal reported, Trump’s concern was political, not personal: He was defending his presidential campaign against potential harm.
Second, for a media organization to make a prohibited corporate contribution to a candidate, it has to depart materially from its performance “in its legitimate press function.” Media companies enjoy wide latitude in the production and dissemination of news stories, commentaries, and editorials. Any questions about legality are typically resolved in favor of the press. So if a media company sympathetic to a political candidate steers away from critical coverage, it may have committed an offense against journalistic ethics, but it is not operating outside of legal boundaries. This affords ample leeway for news editorials and coverage that are coordinated—that is, discussed and even planned—with a candidate.
But when the media duck does not quack like a duck and the actions taken are distinctly not ducklike, those legal protections fall away. An early case on the scope of the media’s exemption from campaign-finance regulation offered the example of “a partisan newspaper [that on Election Day] hired an army of incognito propaganda distributors to stand on street orders denouncing allegedly illegal acts of a candidate and sent sound trucks to the streets blaring the same denunciations, all in a manner unrelated to the sale of his newspapers.” A later court presented a different hypothetical of a press entity not performing a legitimate press function: soliciting donations to fund a political documentary exhorting its audience to vote for a particular candidate. The distinction here is one that separates the editorial page and standard news commentary on one side from clear-cut campaign activity on the other.
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So AMI’s Pecker might have directed his tabloids to ignore the claims made by women alleging they had had affairs with Trump and stayed within the range of exempt press activity. But Pecker went much further, the Journal reported. He concluded an arrangement with a candidate to spend funds to quash a story that other media organizations would have chosen, in their legitimate press function, to publish and disseminate. He carried out this plan by lying to a source his company ostensibly paid for the rights to a story it had no intention of running. AMI was not acting as a press entity, but as an arm of the Trump campaign.