If you look at the actual campaign finance laws, it appears that Michael Cohen – and therefore President Trump, who is already being convicted in the press as his co-conspirator – is not necessarily guilty of violating those laws.
First of all, I want to credit Mark Levin for some of the ideas in this analysis. You should listen to his radio show, on which the legal and constitutional wizard, and former chief of staff to Reagan Attorney General Ed Meese, explained the issue extremely well Tuesday evening.
Cohen pleaded guilty to exceeding political contribution limits with his $130,000 payment to Stormy Daniels to buy her silence about her one-night-stand with Trump. He also pleaded guilty to arranging an excessive “contribution” by the publishers of the National Enquirer for their payment to Karen McDougal for her story about an affair with Trump. As far as I understand it, the publishers walked away from a deal to be reimbursed for their payment, so the money didn’t come from Trump.
That Cohen pleaded guilty to a crime doesn’t necessarily mean that a crime was committed. I mean, technically, yes, because he pleaded guilty, but in reality, there may be no crimes related to campaign finance. The cases haven’t been adjudicated in court. All we have is that Cohen and the prosecutors agreed that he committed a crime.
Why would Cohen admit to a crime that doesn’t exist? Well, first, because that’s the crime prosecutors wanted, because it potentially involved the president. And second, to get them to agree not to prosecute him for far worse criminal acts.
And let’s be clear: It’s probably also the crime his attorney, Lanny Davis, who long worked for the Clintons, wanted him to admit to.
Now, is it a crime? The question is whether it was a personal expense or a political expenditure – that is, effectively a campaign contribution because it was designed to help elect Trump president. But the standard for determining whether it is not a personal expense is NOT whether the expense could help elect a candidate. It is this, according to the FEC website:
Commission regulations provide a test, called the “irrespective test,” to differentiate legitimate campaign and officeholder expenses from personal expenses. Under the “irrespective test,” personal use is any use of funds in a campaign account of a candidate (or former candidate) to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or responsibilities as a federal officeholder.
More simply, if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies.
Conversely, any expense that results from campaign or officeholder activity falls outside the personal use ban.
There is strong reason to believe – and thus reasonable doubt with respect to a conviction – that the “expenses” of paying off MacDougal and Daniels exist outside of the campaign and are therefore personal expenses. Daniels herself has claimed that pressure from Trump not to tell her story existed long before the campaign began.
In a May 3 piece, the article, Politifact quotes legal experts who question whether this is technically a campaign expenditure.
Stephen Hoersting, a lawyer with the Gober Group, a law firm that has done high-level work for the Republican Party, said Washington officials steer clear of apportioning the reasons for an expenditure.
“The FEC does not ask, ‘Would it help a candidate to buy the silence of an old girlfriend?’ ” Hoersting said. “Rather it asks, ‘Would there be any other reason, other than the campaign, for this person to buy the silence an old girlfriend?’ The answer here is yes, there are many reasons a man like Trump would want to buy the silence of old girlfriend.”
Now, you and I may think, if we’re honest, Of course this was related to the campaign. It happened during the campaign. But that’s not the test. The test is whether the expense would exist outside the campaign. It would seem that a rich man accused of having affairs with women who want to be compensated for their silence is something that would exist outside the campaign. That’s what the jury decided in the trial of former presidential candidate Sen. John Edwards, who during a campaign paid off the mistress he had impregnated. That Daniels and McDougal decided to press their claims during the campaign, when it would be most advantageous to them, was their choice, not Trump’s.
What’s more, Cohen and Trump might have at least believed that they were operating within the law, based on the facts. But I doubt either Cohen – or, almost certainly, Trump – understood this as a campaign donation in the first place. That’s the downside of not having a well-organized campaign stocked with veteran campaign operatives. The upside is that he won the presidency.
Finally, the money ultimately came from Trump. Cohen was just the bagman, essentially. Personal expenditures by a candidate on their campaign are not subject to campaign finance limits.
Paying off your paramour, as far as I know, is perfectly legal, even if awfully tawdry. I don’t think Trump or Cohen intended to commit a crime, and it’s highly questionable that they did.