Donald Trump is unlikely to get nailed with fraud charges over his campaign soliciting donations for a non-existent 'official election defense fund,' experts say

• Legal experts say it's unlikely that Trump will be charged with fraud in connecting with his campaign's misleading emails.
• Trump's campaign hit up supporters for cash in the name of a non-existent 'election defense fund.'

Former President Donald Trump is unlikely to face fraud charges related to his campaign's alleged efforts to mislead supporters into donating money to a non-existent "Official Election Defense Fund," legal experts say.

Trump's political fundraising operation is under renewed scrutiny after the US House's January 6 select committee confirmed that no such fund ever existed. Trump's campaign repeatedly hit up supporters with ominous messages that repeated the then-president debunked claims about widespread election fraud. The messages raked in record donations for the beleaguered president to the tune of more than $170 million before he even left office.

Rep. Zoe Lofgren, a California Democrat who serves on the panel, appeared to open the door to potential fraud claims after a top investigator for the committee documented how none of the hundreds of millions of dollars Trump's outfit raised in the months after the election went to supporting his various court fights.

"It's clear that he intentionally misled his donors, asked them to donate to a fund that didn't exist and used the money raised for something other than what he said. Now it's for someone else to decide whether that's criminal or not," Lofgren, who has served as a key investigator in impeachments dating back to Nixon, told reporters after Monday's hearing.

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But experts told Insider that while Trump or his associates may have misled donors, there are still crucial details that are still unknown about the fundraising strategy.

"You need to prove to the jury that somebody authorized solicitations that said the money was going to be spent on election contests knowing that was false," said Adav Noti, vice president and legal director at the Campaign Legal Center who previously served as the Federal Election Commission's associate general counsel for policy. "You need to find the individuals, it wouldn't be enough for criminal purposes to say, 'here's what happened.'"

The January 6 committee revealed previously undisclosed testimony from Trump campaign officials where they admitted that the ominous emails directing people to support legal challenges were more of a marketing gimmick than a serious effort to fund court battles related to the 2020 presidential election.

"The Trump campaign knew that these claims of voter fraud were false yet they continued to barrage small-dollar donors with emails encouraging them to donate to something called, 'The Official Election Defense Fund,'" Amanda Wick, senior investigative counsel for the committee, said in a video played during the hearing. "The Select Committee discovered that no such fund existed."

Noti said what the campaign did "sounds like a fraudulent pattern," but that the fact that a case would center on the then-sitting President of the United States and his campaign could make prosecutors less likely to pursue a case.

"In ordinary contexts, if somebody raised that quantity of money through knowingly false pretenses they might well be looking at a prosecution for fraud," Noti said. "There is a practical consideration that this fraud was perpetrated by or on behalf of the president of the United States and that is a significant fact when it comes to charging decisions."

In a 12-page statement Monday evening, Trump remained as defiant as ever, blasting the select committee's hearings.

"If they had any real evidence, they'd hold real hearings with equal representation," Trump wrote. "They don't, so they use the illegally-constituted committee to put on a smoke and mirrors show for the American people, in a pitiful last-ditch effort to deceive the American public ... again."

More money, more problems?

One thing that is clear: Any campaign money-related legal peril for Trump would likely come from the Justice Department rather than the FEC, a bipartisan regulatory agency that serves as the civil enforcer of campaign finance law.

Numerous Trump-related campaign finance complaints have already come before the six-member commission, of which four members are Trump nominees. The commission, along ideological lines, has frequently deadlocked 3-3 on these cases.

A prime example of this came in May, when the FEC deadlocked on a complaint that Trump's 2020 White House campaign laundered hundreds of millions of dollars in spending through corporate entities closely tied to the ex-president and his family, according to a ruling document obtained by Insider.

In recent years, the Department of Justice has had some appetite for prosecuting campaign finance cases. Earlier this month, former congressional candidate Nicholas Jones pleaded guilty to falsifying records to conceal thousands of dollars in in-kind campaign contributions. And federal prosecutors scored a major victory earlier this year after a jury convicted then-Rep. Jeff Fortenberry, a Republican from Nebraska, of lying to the FBI about an illegal contribution to his campaign from a Nigerian billionaire.

But the Department of Justice's track record on high-profile campaign finance prosecutions is spotty.

A decade ago, former Democratic presidential candidate and US Sen. John Edwards walked free after federal prosecutors declined to retry him after a jury found him not guilty on one count of violating campaign finance law and deadlocking on others, causing a mistrial.

Going after the former president of the United States with criminal campaign finance charges of any sort would be unprecedented.

Attorney General Merrick Garland told reporters that he is monitoring the January 6 committee's hearings, but otherwise, he cited the Department of Justice's traditional standard of not commenting on current or potential future investigations.

Garland has also stressed that his department would not waiver from holding anyone responsible, though some Democrats have criticized him for moving too slowly and being too soft on people who did not ransack the Capitol but nonetheless still contributed to efforts to overturn the election.

Kenneth Gross, a former head of enforcement at the FEC, said any campaign finance case that Trump or his campaign officials could potentially face would be difficult for prosecutors since the government gives campaigns significant deference when it comes to how they spend their money.

"Now, if there was a diversion of funds for personal use, that is the kind of thing that piques the interest of prosecutors in these cases," Gross said in an interview.

As The Washington Post pointed out in 2020, Trump's campaign also told potential donors in fine print that 75% of each donation would go toward Trump's then-newly created leadership PAC.

Trump's re-election campaign committee, along with the political action committees that have succeeded it, have long made fabulous, incredulous, and demonstrably bogus claims to potential donors.

They often involved promises of donation "matches" that, as Insider previously reported, never came true.

The Department of Justice last year indicated that fraudulent "match" solicitations were one of several misdeeds that factored into a political scam artist's guilty plea on one count of wire fraud.

But campaign money scandals may be the least of Trump's legal troubles.

Beyond Capitol Hill and even New York, where officials are probing Trump's business empire, Fulton County District Attorney Fani T. Willis is investigating the president's efforts to pressure Georgia officials after he lost the state. And Attorney General Karl Racine brought a suit against Trump's inaugural committee for paying the then-president elect's company too much money for use of its hotel.