But, the Trump defenders say, reporting violations happen all the time, and that is certainly true. But there are two facets that make the Trump reporting violations criminally significant, as opposed to a misdemeanor oversight or bureaucratic snafu: It appears to have been an intentional end-run around the campaign finance laws and to involve a conspiracy. Each of these points explains why the new Trump argument will fail.
Criminal law focuses on mens rea, or criminal intent. This means the very same act can be criminal if done with one state of mind and innocent if done with another. It is a mistake to think about Mr. Cohen’s allegations as some sort of routine paperwork error. Structuring a transaction to intentionally avoid reporting it as required by the law is a very serious offense, not a technical one that can be forgiven. That is particularly true of the secret payments to the two women, which, had they been disclosed before the election, as they should have been, might have altered the outcome.
The second facet is even more problematic for the president. Prosecutors use the conspiracy doctrine to punish two or more people who merely agree to commit a criminal act. They don’t even have to actually perform the act; they just need to have agreed to do so.