In his latest round of will-he-or-won’t-he, Donald Trump on Sunday got closer than ever to indicating he will run for president again, telling Fox Business he’s already made up his mind but can’t reveal his answer because of campaign finance issues.
The thing is, experts told The Daily Beast, in his quest to avoid violating election laws, Trump may have done just that.
Asked on Sunday about a possible 2024 bid, the former president told Fox Business host Maria Bartiromo, “I do know my answer, but I can’t reveal it yet because that has to do with campaign financing.” He added, “We’re going to do very well,” and said CNN and MSNBC “are gonna come out and endorse me” because, he claimed, his candidacy will increase viewership.
While Trump is notorious for playing games about the true intentions of his remarks, he’s previously said he’s already made up his mind. But his statements to Bartiromo—including a reference to endorsements—suggest he may have crossed into new territory, at least in the eyes of the Federal Election Commission.
For Trump, the question carries consequences for his overall fundraising potential, as well as his work with the dark-money nonprofit backing his social media class-action lawsuit.
Paul Ryan, vice president of policy and litigation at campaign finance reform group Common Cause, told The Daily Beast that Trump may be keenly concerned about the issue if he has plans to supercharge one of his existing PACs.
“The potential violations will get really serious if Trump uses an unlimited-money vehicle to promote a 2024 run,” Ryan said. “I’m a little surprised he hasn’t done this yet.”
According to the FEC, a candidate must file official reports with the government after he or she decides to run and raises or spends more than $5,000. However, the agency also provides a “testing the waters” exemption. That allows potential candidates to raise and spend money while they weigh their decision, without having to file reports. That exemption, however, comes with an important caveat: that money used in this period is subject to federal campaign finance limits.
Daniel Weiner, deputy director of election reform at the Brennan Center at NYU, told The Daily Beast the exemption is not a “free pass” for Trump.
“‘Testing the waters’ is a legal concept intended to address a situation where there’s genuine uncertainty,” Weiner said. “But you cannot just start raising money when you know for sure you are running and claim a free pass from campaign finance rules.”
This issue actually comes up frequently. In 2018, the FEC chose not to charge rap-metal artist Kid Rock with breaking election laws during his 2017 “Kid Rock for U.S. Senate” campaign in Michigan, finding the endeavor was “an artistic and commercial undertaking” to promote a new album.
But Ryan, of Common Cause, pointed to a unanimous 2019 FEC decision which found reason to believe Trump’s 2016 opponent, then-Wisconsin Gov. Scott Walker, violated these rules.
“Trump is on notice regarding how the FEC interprets these laws,” he said. “Any Trump violations would arguably be knowing and willful, subjecting him to potential criminal prosecution.”
The grace period ends, according to the FEC, “once an individual begins to campaign or decides to become a candidate.” And on Sunday, Trump said he has decided.
Of course, in true Trump fashion, the former reality TV host didn’t say what his decision was. But Ryan, who has filed several complaints on the issue, told The Daily Beast that suspense and uncertainty are “irrelevant to the law.”
“Once again, Trump has either received bad legal advice or failed to comprehend legal advice,” he said. “Whether or not someone admits their status is irrelevant to the law.”
Even if an unambiguous admission were the standard, Weiner noted, Trump’s specific comments on Sunday about “campaign financing” concerns and endorsements make it difficult to see more than one possibility.
“The FEC has tended to give the benefit of the doubt when a candidate says they are still testing the waters, but it’s unusual to have this degree of clarity in a public statement,” he said.
It’s unclear how a decision not to run would raise “campaign financing” concerns for Trump. That choice would not by itself force any changes, experts said, because Trump, who converted his campaign committee to the Make America Great Again PAC in February, would seemingly just be continuing his current non-candidate status quo. The “campaign financing” concerns would only appear to be a concern if Trump were to change that status.
Jordan Libowitz, communications director for ethics watchdog Citizens for Responsibility and Ethics in Washington, told The Daily Beast that if Trump does announce his candidacy in the future, the reporting rules would apply retroactively—starting now.
“Trump—if you believe what he’s saying—has already decided,” Libowitz said. “So if he ends up getting in the race, that would mean he had made the decision as of now, and should be filing FEC reports as a candidate.”
Trump has incentives to sidestep those rules. Brett Kappel, election law expert at Harmon Curran, explained that the Trump campaign would not be able to raise as much money from individual donors as his PACs can.
“If he becomes a candidate, the limits on contributions to his campaign kick in,” Kappel told The Daily Beast. “Small donors will be limited to giving a total of $2,900 per election to him from now until 2024,” for a total of $5,800, as opposed to the $5,000 limit for MAGA PAC that resets each year.
“Even if donors only give him $25 a week, some of them will max out well before 2024,” he said. Trump has regularly been hitting supporters up for cash since he left office.
Kappel pointed to another requirement Trump would almost certainly not want to trigger: the requirement to file annual financial disclosures.
And then there’s Trump’s legal considerations. Candidate status could also throw a wrench into Trump’s class-action lawsuit against social media companies, which he announced in a press conference last Wednesday. That’s because the former president’s legal team is coordinating with a fledgling pro-Trump nonprofit called America First Policies Institute, a so-called “dark money” group with a $20 million budget.
Weiner said a Trump candidacy would impose “significant limitations” on the nonprofit’s work.
Ryan was more pointed: “If he’s a candidate, then any collaboration between them on litigation intended to help him in the election is illegal.”
Both Trump and AFPI have been using the lawsuit to attract donations. When the head of AFPI joined Trump at the lectern for the press conference, she directed supporters to a website where they could “join the lawsuit.” The page, however, only allows users to donate money or join a fundraising email list.
Trump also made this pitch on Fox Business, directing viewers who want to join the lawsuit to the same website.
“I guess I could say this on your show,” he told Bartiromo. “It’s ‘take on big tech dot com.’ ‘Take on big tech dot com.’ And they’re joining, like, I don’t know, like, probably most of these class actions have never seen before.”
As dangerously close as Trump may be to skirting the law, he may be saved by a deadlocked FEC.
Kappel said that, even if Trump has indicated a decision to run, the agency has been “extremely reluctant” to rule on the issue without “clear and unambiguous evidence.”
Weiner took the hypothetical even further.
“Whether the FEC does anything to make him register is another question. They have trouble reaching agreement even to pursue many clear-cut violations,” he said.