At a rally on the day of the Iowa caucuses this year, Donald Trump told the audience that he'd been warned about protesters with tomatoes in the audience.
"So if you see somebody getting ready to throw a tomato, knock the crap out of 'em, would you? Seriously. Okay? Just knock the hell — I promise you, I will pay for the legal fees. I promise. I promise."
Later the month, as a protester was being led out of another rally, Trump lamented that he wasn't closer. "I’d like to punch him in the face, I tell ya," he said.
On Wednesday, as you've likely heard, someone at a Trump rally decided to act in Trump's stead. Trump had again complained about the protesters, saying that "in the good old days this didn’t used to happen, because they used to treat them very rough," according to the Atlantic's David Graham. So, John McGraw, 78, slipped up a row of seats to the aisle where some protesters were being led out. Without warning, he apparently threw a punch.
McGraw was arrested for assault and battery. Which raises two questions: First, will Trump honor his pledge to pay legal fees? And second, can he, legally?
We sent an email to the Trump campaign to ask whether or not the campaign would pay McGraw's fees. We have not yet received a response and, frankly, aren't really expecting one. But it may actually not matter.
Jim Sutton, an election law attorney in California who's been practicing for 25 years, described the scenario as "the outer bounds of campaign law" -- but not necessarily something for which there isn't guidance.
Sutton notes that there's precedent for a campaign being liable for an injury suffered by a protester at a campaign event. At an inauguration event for former California governor Pete Wilson (R), a protester sued after being injured by event attendees. The cost of those injuries ended up in the lap of the campaign committee -- the legal entity that holds a campaign's money -- and its insurer.
What's more, Sutton expects Rakeem Jones, the victim of the attack, to sue. "Look, they're not going to just sue the person who hit them," Sutton said. "They're obviously going to sue the Trump campaign. If for no other reason, that's where they assume the money is and because they're mad at the candidate and might want to embarrass him."
"Because there's potential legal liability for the campaign, then for the campaign to say, 'I'm also going to pay the legal fees for this individual' -- I would say that probably does pass legal muster," Sutton said, "because it's part-and-parcel of the committee's liability." The campaign would pay if it were an employee that were sued, for example. Or, for that matter, an independent contractor. Or, for that matter a volunteer.
"This is the next step out," Sutton said, "an attendee. That is pushing the boundaries ... but I think it's possible that it passes legal muster to the extent that the committee also faces legal liability for the actions of that rally supporter."
Interestingly, if Trump himself wanted to pay the legal fees, he'd likely have to report that as a contribution to his campaign since those fees are "an expense for the purposes of promoting the campaign," in Sutton's estimation. He analogized to the money given to John Edwards during the 2008 election cycle to pay off Edwards's mistress. Edwards was indicted for violating campaign finance law for not reporting the money as a contribution. This is a very different side of that very weird coin.
But all of this is simply Sutton's best guess. "This is into the arcane corridors of campaign laws and how terms are defined," Sutton said. The law "certainly didn't envision this type of thing."
Back in the good old days, we assume, things were clearer.