The Jan. 6 committee says the Trump campaign ripped off donors. But was it illegal?

Caption

A clip of former President Donald Trump is played during a hearing of the House Select Committee on the January 6 Attack on Monday. / The Washington Post via Getty Images

Updated June 16, 2022 at 10:54 AM ET

The House select committee investigating the Jan. 6 insurrection at the Capitol is calling it "the Big Rip Off."

It says the Trump campaign took $250 million in donations from supporters that it said would go to an election defense fund to pay for legal fees to overturn the 2020 presidential election results. But the fund was never actually created, Rep. Zoe Lofgren, D-Calif., one of the committee members, said Monday in the panel's second public hearing.

Instead, the money went to the Save America political action committee, she said, and the money went from there to several pro-Trump organizations which are headed by former officials close to Donald Trump's inner circle.

"Not only was there the Big Lie," Lofgren said, referring to Trump's false allegations of election fraud, "there was the Big Rip-Off."

Asked about the committee's allegations, Trump spokesperson Liz Harrington responded in a statement, "The Unselect Committee continues to spread baseless lies against President Trump. No one is more committed to fixing our elections than he is, and our political spending is totally synchronized with that goal."

The committee can't prosecute Trump or any of his involved allies for anything it is investigating, however it could recommend the Department of Justice pursue criminal charges.

The question, though, is whether there is enough evidence to build a case that Trump and his associates did in fact break any laws.

Where the money was spent is a key question

"This is a difficult one," said Ken Gross, former associate general counsel of the Federal Election Commission. "As distasteful as it is to raise money for a purpose other than what you're going to use it for, in the political arena, there's a good bit of latitude given to campaigns because oftentimes, money is used for some other purpose."

He says an example would be a campaign asking for donations and saying it would go to TV ads but instead using them for a different effort within the campaign — things like that happen all the time. And unless there's evidence that shows the funds were converted for personal use and not within the political arena, Gross said it would be hard for a prosecutor to take on the case.

"Whether it would be actionable legally, I'm not quite ready to go there unless we have some further aggravating facts such as a conversion to personal use," Gross said.

"If [the funding from donors] stays in the political arena, even though it wasn't used for the political purpose that it was raised for, I think that's a tough case for a prosecutor to get real interested in," he said.

Campaign finance law doesn't necessarily apply

Here's where it gets further complicated. Ciara Torres-Spelliscy, a professor of election law at Stetson University, told NPR that campaign finance law doesn't necessarily apply here.

In this case, Trump said he was using money from donors for his legal defense fund. And it happened after the election was over.

"Legal defense funds fall outside of normal campaign finance. They are not considered either contributions or expenditures under the campaign finance law," Torres-Spelliscy said. "You can raise money for legal defense funds that are not subject to classic campaign finance limits."

For example, there are limits set by the FEC that dictate how much an individual donor can give to a campaign. But those limits don't apply to legal defense funds.

But she added that that does not mean that no law applies. In this case, she believes the Jan. 6 committee is laying the groundwork for a case of wire fraud.

"With wire fraud, you use some of our telecommunications structure, like the internet, and you defraud a victim of their money. And if the Justice Department agrees, then they may well have a case against the former president and some of his associates for defrauding lots and lots of different donors," Torres-Spelliscy said.

Intent comes into play

What information would prosecutors need to make a case? In short, more evidence.

"You would need some facts as to the scheming, if you will, behind this fundraising effort," Gross said. "Intent is going to come into play ... prosecutors are going to need some aggravating factors before they pursue it."

In other words, they would need proof that Trump knew the money was not going to be used to fight his legal battles in attempting to overturn the election. More on that topic might be coming from the House committee in the coming weeks as members spell out more of their case.

Still, Gross says it would be a tough case to take on.

But both Torres-Spelliscy and Gross pointed to a different example of when a Trump associate was tied up with accusations of misusing donated funds, though this one wasn't tied to an official campaign for office. In 2020, prosecutors charged Steve Bannon, Trump's former political adviser, with wire fraud after he raised $25 million in a campaign to build a wall on the southern border — but allegedly took millions of dollars of those donations to line his own pockets.

"You gin them up with something they care about, whether it's building a wall at the southern border or fighting phantom election fraud, and you get all this money from donors ... some of whom do not have this money to spare," Torres-Spelliscy said.

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