Elections Expert Witness Barred from Providing Opinions on the Interpretation of Campaign Finance Laws

Elections Expert Witness Barred from Providing Opinions on the Interpretation of Campaign Finance Laws

In March 2023, Manhattan District Attorney Alvin Bragg, a Democrat, indicted Donald Trump on 34 charges tied to the hush money payments, accusing him of “falsifying New York business records to conceal damaging information and unlawful activity from American voters before and after the 2016 election.”

It all started when the Wall Street Journal reported on certain payments Michael Cohen, former Trump attorney and a key witness in Trump’s hush money trial made to adult film star Stormy Daniels before the 2016 presidential election.

Daniels and Karen McDougal, a Playboy model, came forward with unflattering stories about alleged affairs with Trump during the 2016 election. Cohen admitted that he obtained a line of credit on his home to make a payment of $130,000 to Daniels for a nondisclosure agreement about her encounters with Trump while National Enquirer’s parent company, American Media Inc., paid McDougal $150,000 for the rights to her story. Trump denied both affairs. He initially denied any knowledge of the payments, but he later admitted in a carefully worded tweet that he made them to Cohen. Cohen and AMI have both admitted they broke laws by making these payments.

Defendant introduced Bradley Smith to opine on the interpretation and application of federal campaign finance laws during the proceedings.

Elections Expert Witness

Bradley Alan Smith teaches Election Law at the Capital University Law School in Columbus, Ohio. He previously served as commissioner, vice chairman, and chairman of the Federal Election Commission (FEC) between 2000 and 2005. He has held prior visiting appointments at Princeton University and West Virginia University.

Smith’s writings on campaign finance and other election issues have appeared in the Yale Law Journal, the University of Pennsylvania Law Review, the Georgetown Law Journal, the Harvard Journal of Legislation, the Cornell Journal of Law & Public Policy, and other academic journals.

Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Bradley Smith’s expert testimony. 

Discussion by the Court

Key Witnesses and Evidence

Prosecutors showed checks and ledgers demonstrating payments from Trump’s company to his former attorney, including a handwritten note outlining a payment plan for Cohen. David Pecker, the former publisher of the National Enquirer, admitted to working with Cohen in order to hide unflattering information. The witness list for this hush money case also included former White House counsellor Hope Hicks. The government wanted Hicks to testify because she’d had conversations with both Trump and Michael Cohen, Trump’s former attorney, about Karen McDougal and Stormy Daniels.

When Cohen testified about his involvement in the hush money case, the judge explicitly told jurors that Trump could not be convicted based solely on Cohen’s testimony. Trump did not testify. The judge instructed the jury that Trump’s decision must not be used as a factor in their deliberations.

The judge overseeing the case, Juan Merchan, expanded a gag order on Trump after the former president attacked Merchan’s daughter on social media. He fined the Defendant a total of $10,000 for various violations.

Bradley A. Smith

Defendant disclosed Bradley Smith to opine on whether the Stormy Daniels (“Daniels”) payoff violated campaign finance law. Prosecution insisted that his proposed testimony be treated as expert testimony and not lay testimony. The Court agreed considering Smith did not possess personal knowledge regarding the underlying facts of the instant matter.

Defendant sought to elicit from Smith, among other things, that at the time Cohen paid Daniels, there had never been a case in which anyone had been convicted of a federal campaign finance law violation for the making of “hush money payments;” the facts surrounding the trial of former U.S. Senator and presidential candidate, John Edwards, his subsequent acquittal, and that the case was heavily criticized.

The Court permitted Smith to testify generally as to the following: general background as to what the Federal Campaign Commission (“FEC”) is, background as to who makes up the FEC, what the FEC’s function is, what laws, if any, the FEC is responsible for enforcing, and general definitions and terms that relate directly to this case, such as for example “campaign contribution” but barred him from opining on the interpretation and application of federal campaign finance laws and whether the alleged conduct in this case did or did not constitute a violation of the Federal Election Campaign Act (“FECA”).


On March 18, 2024, the Court granted in part and denied in part the motion to exclude the testimony of Bradley Smith.

Two months later, a Manhattan jury found Donald Trump guilty of all 34 charges of falsifying business records, making Trump the first former president in American history to be convicted of a felony.

The 34 charges against the former president are Class E felonies, the lowest level in New York law. Trump, however, has said he will appeal.

Key Takeaway:

Federal investigators went after Cohen instead of Trump. The Manhattan DA took years to finally present the case to a grand jury. Now it could end up being the only one of the four criminal cases against Trump to go to trial before the November election but the guilty verdict, while a major political moment, does not prevent Trump from continuing his presidential campaign nor from serving should he win the White House.

The Court permitted Smith to provide background on what the Federal Campaign Commission (“FEC”) is but barred him from offering opinion testimony on the interpretation and application of federal campaign finance laws.

Case Details:

Case Caption: People of the State of New York V. Donald J. Trump
Indictment No: 71543/2023
Court:Supreme Court of the State of New York
Order Date: May 30, 2024


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