Donald Trump’s not the only one asking this question, although he has the most self-interest in asking it. “I never directed Michael Cohen to break the law,” Trump started in laying out his case on Twitter, and then argued that not all the acts to which Cohen pled guilty should have been crimes in the first place. Trump took aim at his biggest legal liability so far — the payoffs that kept his former paramours from talking publicly about his infidelities. How could those possibly be campaign-finance violations, especially in a criminal context?
Former FEC commissioner Brad Smith raises the same question at National Review. There are plenty of ways in which candidates attempt to influence voters, but not all of them require FEC reporting. The way that campaign finance laws have been interpreted traditionally, Smith argues, is that the expenditures have to relate to explicitly campaign-related events and messaging:
To this intuitively obvious fact — very few people would think paying hush money is a legitimate campaign expenditure — those eager to hang a charge on Mr. Trump typically respond that he made the payments when he did because of the looming election. That may be true, but note that the same is true of the entrepreneur, who instructs his counsel to settle the lawsuits pending against him. Further, note that in both cases, while the candidate has no legal obligation to pay at all, the events that give rise to the claim against him are unrelated to the campaign for office. Paying them may help the campaign, but the obligations exist “irrespective” of the run for office. Mr. Trump’s alleged decade-old affairs occurred long before he became a candidate for president and were not caused by his run for president.
Further clinching the case, in writing its implementing regulations for the statute, the Federal Election Commission specifically rejected a proposal that an expense could be considered a campaign expenditure if it were merely “primarily related to the candidate’s campaign.” This was done specifically to prevent candidates from claiming that things that benefitted them personally were done because they would also benefit the campaign. And with that in mind, it is worth noting Mr. Cohen’s sentencing statement, in which he writes that he “felt obligated to assist [Trump], on [Trump’s] instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family.” (Emphasis in original.)
This was a point Jazz raised in his earlier post, too. If this can be seen as having any legitimate non-electoral purpose (ie, preventing familial embarrassment), then the FEC regulations don’t apply. Even if Cohen had paid the money out of his own pocket because he was solely concerned about the election, then the illegal contribution would be his problem and not Trump’s. Trump supplied the money, as Rudy Giuliani helpfully informed us in May, so Cohen would be off that hook. But Trump’s other reasons for keeping affairs quiet are obvious. It’s the John Edwards defense.
That may still apply even in the AMI/National Enquirer deal announced yesterday. Publisher David Pecker and his organization got immunity in exchange for spilling all it knows about Trump and efforts to cover up for him. They admitted to burying bad stories to boost Trump’s chances of winning the election, which certainly would have put them in significant legal jeopardy:
As part of the deal, the tabloid publisher acknowledged a series of “admitted facts” tied to its work with the Trump campaign to ensure damaging allegations about the real estate mogul didn’t come out before Election Day 2016. The arrangement — which involved Pecker, Cohen and one other member of Trump’s campaign — stretched back to August 2014, according to a separate court filing on Friday.
In the document released Wednesday, AMI confirmed that it paid a woman $150,000 in “cooperation, consultation and concert” with Trump’s campaign to ensure she “did not publicize damaging allegations about that candidate before the 2016 presidential election and thereby influence the election.” …
The nonprosecution agreement, according to several legal experts, strongly suggests there is additional corroboration of the crimes Cohen has already pleaded guilty to involving the president. It also suggests Pecker and others at AMI “may provide support for the allegation that the president willfully and knowingly joined a conspiracy to violate the campaign laws as well as possible tax crimes committed by AMI,” Rossi said.
Barbara McQuade, a former U.S. Attorney from Michigan, said the immunity deal “suggests that witnesses other than Cohen are providing information to [special counsel Robert] Mueller about Trump.”
“A corporation can act only through its officers and employees, so one or more officers or employees of AMI appear to be providing information to Mueller about the payoffs at issue,” she added. “This could mean that additional subjects could be charged, including Trump, for conspiracy or solicitation of a campaign finance violation.”
If Smith is correct, though, these all have the same flaw. If Trump had any reasonable need other than the presidential campaign to keep stuff quiet, then the payoffs don’t fall under FEC laws. Remember, the FEC explicitly rejected language that would have broadened that law by adding the word “primarily” to the regulation. It cut both ways, in that it prevents candidates from spending campaign money on personal issues only tangentially related to campaigning — such as settling business lawsuits, Smith notes as a hypothetical, or paying off mistresses.
Imagine, Smith asks, if Trump had used campaign funds for those purposes:
Indeed, it is quite probable that many of those now baying for Trump’s scalp for illegal campaign contributions would be leading a charge to prosecute Trump for illegal “personal use” of campaign funds had he made the payments from his campaign treasury.
Finally, by ignoring these other parts of the statute and its implementing regulations (which carry the force of law), the prosecutors attempt to make the “for the purpose of influencing any election” language a subjective test that would, but for the plea bargain, be decided by a jury. But that is incorrect. The test is intended as an objective test of campaign-related expenditures. Renting campaign office space, printing bumper stickers and yard signs, hiring campaign staff, paying for polling, and buying broadcast ads are all obligations that exist for the purpose of influencing an election. Paying hush money to silence allegations of decade-old affairs is not.
Technically, Smith has a compelling argument. Note, however, that it wasn’t compelling enough to keep Michael Cohen from pleading guilty and from David Pecker to negotiate an immunity agreement. Both of these men had serious legal representation and a full knowledge of these laws, and neither could be described as naïfs who got bulldozed by an interrogator into a false confession. If there was a good chance these weren’t crimes, they wouldn’t be playing along.
Robert Mueller is clearly using an aggressive interpretation and enforcement of rarely-used laws like these from the FEC and the Foreign Agents Registration Act to move his investigation forward. There may be a price to pay for that aggressiveness if someone challenges those interpretations, but that won’t come until a trial takes place. Donald Trump might get a chance to make this case in front of a jury, as Edwards did a few years ago, but there’s no guarantee it will work out as well for him.
As for never directing Cohen to break the law, no evidence has emerged to contradict Trump on that point except Cohen’s own self-interested testimony — yet. Don’t forget that Mueller has a large number of recordings of Cohen conversations and a trove of documents from Cohen’s files. Only a few reportedly involve Trump, but it might only take one. Stay tuned.