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Did Trump Violate Campaign Finance Laws?

Legal experts debate whether payments to kill stories about then-candidate Trump's affairs were undisclosed campaign expenditures.

In today's Washington Post, three prominent DC attorneys representing a range of political viewpoints -- George Conway, Neal Katyal, and Trevor Potter -- argue that President Trump likely violated federal campaign finance laws when he encouraged hush money payments to prevent potentially embarrassing stories about his extra-marital affairs in the final weeks before the 2016 election. Their article begins:

Last week, in their case against Michael Cohen, federal prosecutors in New York filed a sentencing brief concluding that, in committing the felony campaign-finance violations to which he pleaded guilty, Cohen had "acted in coordination with and at the direction of Individual-1," President Trump. And this week, prosecutors revealed that they had obtained an agreement from AMI, the parent company of the National Enquirer, in which AMI admitted that it, too, had made an illegal payment to influence the election. The AMI payment was the product of a meeting in which Trump was in the room with Cohen and AMI President David Pecker.

This all suggests Trump could become a target of a very serious criminal campaign finance investigation. In response, Trump has offered up three defenses. His first was to repeatedly lie. For quite some time, he flatly denied knowledge about the $130,000 payment to Stormy Daniels. But now he seems to be acknowledging that he knew (since his personal company reimbursed Cohen for the payment, he ought to). Now Trump and his acolytes have turned to two other excuses: They point to an earlier case involving former senator John Edwards to argue that what Trump did wasn't a crime; and they say, even if it was a crime, it wasn't a biggie — there are lots of crimes, so what, who cares.

The former is a very weak legal argument, and the latter a dangerous one. Indeed, the campaign finance violations here are among the most important ever in the history of this nation — given the razor-thin win by Trump and the timing of the crimes, they very well may have swung a presidential election.

As they note, the last time a federal court was faced with similar questions -- during the prosecution of John Edwards over alleged campaign finance violations related to the payoff of his mistress Rielle Hunter - the court accepted the legal theory that such payments could constitute campaign expenditures if made for the purpose of influencing a campaign. They also express justified dismay at the arguments, made in some circles, that it doesn't matter whether Trump violated the law because he has partisan opponents -- as if that is legally relevant or could somehow excuse otherwise illegal conduct. They conclude:

The bad arguments being floated in Trump's defense are emblematic of a deterioration in respect for the rule of law in this country. The three of us have deep political differences, but we are united in the view that our country comes first and our political parties second. And chief among the values of our country is its commitment to the rule of law. No one, whether a senator or a president, should pretend America is something less.

UC Irvine law professor Rick Hasen agrees that the case against Trump appears to be significantly stronger than that against Edwards. He writes:

Everyone knew that Edwards was on trial for having donors make payments to his mistress to help fund his campaign. This put Trump and everyone else on fair notice that federal prosecutors were treating such payments as reportable campaign expenditures in certain circumstances. Trump even tweeted about the case at the time. At the very least, the Edwards precedent should have caused Trump to seek advice of counsel on whether payments made to hush up mistresses timed specifically to help his election campaign were illegal.

Not only is the legal theory against Trump stronger because of the Edwards precedent; the facts of the Trump case appear much stronger than the Edwards case as well. Here there appears to be both testimony of Cohen and people from AMI (the National Enquirer parent company) who have said that they coordinated with Trump to make the payments in order to help Trump's election chances. There was no corroboration for Edwards but apparently plenty for Trump. And there's great evidence of consciousness of guilt: the use of the LLC and AMI to launder the payments; the denial for more than a year that the payments were made; the disguising of the reimbursements to Cohen from the Trump Organization as payments for legal services and technical services. This is no paperwork error like Obama or McCain made.

Trump of course would have the ability to show at any trial that he did not have the willfulness required for this to become a criminal matter, but it looks like there is plenty of evidence there to give the issue to a jury. The timing of the Daniels payment is particularly damning in proving this was campaign related and not primarily about helping Trump's personal life. Cohen and Trump refused to pay off Stormy Daniels until October 25, 2016, just before the election and after the release of the "Access Hollywood" tape, when Daniels had threatened to give an interview to a media outlet about their sexual encounter.

Not all legal experts are convinced the payments to Stormy Daniels and Karen McDougal constitute campaign expenditures under federal law. Former FEC Chairman Bradley Smith, for example, argues that such payments are simply not the sort of expenditures covered by current law. Back in August, he made this argument in the Washington Post:

regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that "contribution" and "expenditure" aredefined in the Federal Election Campaign Act as anything "for the purpose of influencing any election," and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to "influence an election," from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages and Brooks Brothers suits — seems more like bribery than funding campaign speech.

That's why another part of the statute defines "personal use" as any expenditure "used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign." These may not be paid with campaign funds, even though the candidate might benefit from the expenditure. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate. . . .

Yes, those payments were unseemly, but unseemliness doesn't make something illegal. At the very least, the law is murky about whether paying hush money to a mistress is a "campaign expense" or a personal expense. In such circumstances, we would not usually expect prosecutors to charge the individuals with a "knowing and willful" violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.

The ultimate arbiter of this question may be Congress, rather than the courts, as it is exceedingly unlikely that Trump will ever be indicted for these alleged crimes. instead, these are questions to be considered if and when Congress opens an impeachment inquiry.

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  • Mr. JD||

    Libertarianism should be opposed to restrictions on spending and particularly cantankerous about trying to make exceptions for sex.

    But this is Trump, so expect a fair bit of support for prosecution.

  • a ab abc abcd abcde abcdef ahf||

    Then they aren't libertarians. Libertarians can get away with arguing over military and victim prosecution. Anyone arguing for government control of campaign financing is a statist.

  • Rev. Arthur L. Kirkland||

    Good point. That means both sides of this discussion should be a libertarian-free zone (unless someone is dumb enough to try to argue that a Trump supporter can be a libertarian).

  • SimonP||

    Libertarians, as a rule, don't have a real answer or coherent theory of marketplaces - what they are, how they're organized, what they require in terms of government support. They seem to think that marketplaces emerge organically from the brute desires and needs of survival, so that any attempts to govern them essentially interfere with the free exchange of goods.

    The same is true of public discourse, i.e., the "marketplace of ideas." "The only response to bad speech is more speech," and all that rot. It's attractive to the basement-dwelling, MOBA-playing, computer-engineer Master of the Universe but perennial beta-male incel libertarian-type, but on any kind of close scrutiny one starts to see where the theory breaks down. Campaign finance addresses one of those breakdowns.

    Because a rule that anyone gets to spend money on whatever they want is one that ensures that those with the most money will effectively rule, and thereby shape and empower government to serve their own narrow interests. Unregulated campaign finance results in concentration, expansion, and corruption of power - an anti-libertarian result. So we seek to find ways to create a political marketplace of ideas that functions like we think a market should - good ideas win, bad ideas get voted out. Our existing laws may not do that. But certainly doing nothing will not, either.

  • DjDiverDan||

    Poor SimonP - so much stupidity, so little time.

  • gormadoc||

    What a load of crap. Not only do you not understand libertarianism or markets, your reference to MOBAs demonstrates that you don't know anything about MOBA players, either.

  • Sarcastr0||

    ...I like Dota 2...

  • gormadoc||

    So do I, but pretending that they're all libertarians is pretty much the opposite of my experience. Most are just apolitical jerks and most of the politically conscious are fairly typical slightly left-leaning voters of whatever country they're from. The top voted post on r/dota2 is still the one encouraging people to support net neutrality.

    Also, "Master of the Universe"? He-Man just wasn't a thing for the fairly young MOBA crowd.

  • SimonP||

    What I mean by "Master of the Universe" is not a direct He-Man reference, but to the fact that libertarian computer engineers don't appreciate that there is any problem or intellectual inquiry that is beyond their competence, and anything that is (e.g., philosophy) isn't worth pursuing anyway.

  • SimonP||

    My mistake. Clearly libertarians are more the Soulsborne type.

  • Sarcastr0||

    Functionally, the law is often what you can get away with, so I'm thinking Trump's gonna be fine in that respect.

    Also functionally, it's looking like a pretty entertaining pre-holiday Friday afternoon in the making!

  • Bob from Ohio||

    Agree on both points.

    Too bad the VC was not around during the Clinton impeachment. Everyone could find their old comments and then reverse them.

  • TwelveInchPianist||

    "You wanna impeach him for getting a blowjob??"
    "But - but- muh rule of law..."

    "You wanna impeach him for being paying off his mistress..."
    "But - but- muh rule of law..."

  • Sarcastr0||

    Eh, the few on the left trying to make hay of Trump's morals aren't finding a lot of purchase (and the right is sure happy not to care), which is why we're stuck with these much more boring money scandals.

    Say what you will about our puritan morals, it sure does make scandals more interesting to read!

  • TwelveInchPianist||

    Well, the Clinton impeachment was supposed to be about the rule of law as well. It was a perjury/obstruction of justice scandal, not a moral scandal.

  • Sarcastr0||

    Kinda sorta, but certainly the rhetoric on the House Floor and in the starr report went a bit beyond the legally sufficient.

  • M.L.||

    And same here. They are both moral scandals with a thin veneer of law.

  • TwelveInchPianist||

    I don't doubt that, although the Starr report was juicer than it could have been due to Clinton's "definition of sex" defense.

  • gormadoc||

    Hey, if there's anyone qualified to make fine definitions of what kinds of sex there can be, it's Bill Clinton.

  • M.L.||

    Let's not kid ourselves. The alleged sexual affair is just a proxy for the real moral scandal of Trump -- the moral scandal which is driving all of this. It's not a single event but may be typified by a list of illustrative examples:

    Trump said "pussy" in a private conversation that was secretly recorded. He said rude things about immigration and foreign nations and dignitaries, insulted all of his political opponents, threatened the corrupt administrative state, declared war on the forces of statist globalism, generally questioned the shibboleths of the far left and humiliated the deep and long-running cadre of politicos who have delivered so many failures over many decades.

    So this moral scandal is different from Clinton's.

  • Sarcastr0||

    So what percentage of the world would you call far left statist globalists?

    If you're going to argue Democrats only oppose Trump due to his words, does that mean Trump hasn't done anything conservative?

  • M.L.||

    What I would call the far left is probably no more than 10-15% of Americans. A lot more than that might go along with it.

    Globalism is a separate issue. Bernie Sanders does not appear to be a globalist, maybe even same for Chuck Schumer. And a lot of globalists are not particularly leftist. By globalism I mean favoring the centralization of authority or increase of power in supranational bodies and structures. There's a lot of folks who want a one world government. If we're being honest, we must also realize that the U.S. is itself a supranational globalist power, with all of its foreign intervention and military adventures not authorized by Congress.

  • a ab abc abcd abcde abcdef ahf||

    Everything I have seen and read about campaign finance laws says they are so murky and vague that everybody, politician or voter, violates campaign finance laws every election.

    The idea that paying hush money to clean up his image is a violation because it influences the election just proves the point. Every haircut does the same, every shoe shine, every choice of tie or even shoelace does the same. Eat a free hot dog on the campaign trail? You and the hot dog giver both violated campaign finance laws.

  • Westmiller||

    I agree with both points. Campaign law is arguably unconstitutionally vague, to say nothing of the infringement of free speech.

    If someone picked up the tab for Hillary's cup of coffee, that's a violation. Hell, if someone holds up a hand-made sign saying "Bernie For Prez", that's an in-kind contribution, certainly "intended to influence" the election.

    Time to shred McCain's stupid campaign law against the "appearance of impropriety". That's not a proper subject of any law.

  • RPGuy16||

    And if Hillary pays for her own coffee, that's also a violation. She needs the coffee to stay alert and give better speeches. Intending to influence an election.

  • Eddy||

    Coffee would let her make better speeches?

    Irish coffee, maybe.

  • Formerly Known as Stash||

    Neither the coffee nor the sign-making exceed contribution limits, are coordinated with/directed by the campaign or are anything but de minimis. If the distinction is so absurd, doubtless you can come up with better examples in the $100k of value range.

  • Bob from Ohio||

    Can "campaign finance" violations get 67 votes in the Senate?

    Then the next year of anger [from both side] and recriminations will be for nothing.

    Ought to be entertaining. Though it sadly seems like a reboot of the Clinton saga

  • Rev. Arthur L. Kirkland||

    Not for nothing. Far from it.

    I do not believe Pres. Trump should (on current evidence) be impeached, let alone tried, let alone convicted.

    But only a partisan jerk would contend that his lies, misdeeds, failures, immorality, and general ugliness should not be revealed and subjected to the opprobrium of decent, reasoning, informed, modern, educated Americans as quickly as can reasonably be arranged. If he has violated the criminal law, he could be tried after his presidential term ends.

  • Sarcastr0||

    Even if there is no direct function, there is still some good to be gained from the formalist analysis. And possibly even some eventual political weight.

  • Bob from Ohio||

    Who knows about the political effect. In the short term Clinton gained but it might have cost Gore some, especially since he largely tried to distant himself from Clinton in the campaign. It also taught the GOP that wagon circling is the proper response.

    Its just going to be partisan poo flinging. Fun but pointless.

  • Sarcastr0||

    Ask Hillary how pointless poo flinging is.

    But this particular poo includes some debate to be had about something other than what the facts actually are, which is a nice change these days.

  • Bob from Ohio||

    No, the debate will center on which fact is true: Trump did it for campaign reasons [maybe a crime] or Trump did it for personal (hiding it from his wife) reasons {not a crime}

    But even if it is a crime, you cannot get 67 votes to convict.

    So pointless. {Even Pelosi sees that.} But I see we are going to do it so best sit back and enjoy it.

  • Sarcastr0||

    There are political prices beyond simply direct impeachment, they just take a bit of time to arrive. Again, ask Hillary.

    And this thread is already about more than the specific intent question.

  • Brett Bellmore||

    "At the very least, the Edwards precedent should have caused Trump to seek advice of counsel on whether payments made to hush up mistresses timed specifically to help his election campaign were illegal."

    Am I to understand that they're saying Cohen wasn't a lawyer? Isn't that kind of the point of doing things through a lawyer, that they get done in a legal way, and if there's no legal way to do it, it doesn't get done?

    Now, if Cohen has a recording of Trump saying, "I don't care if you say it's illegal, do it anyway!", things could get a bit dicey for Trump. Short of that, it's all on Cohen, because he's the legal professional Trump DID seek advice of counsel from.

  • Rev. Arthur L. Kirkland||

    Now, if Cohen has a recording of Trump saying, "I don't care if you say it's illegal, do it anyway!", things could get a bit dicey for Trump.

    That assertion underestimates the gullibility, partisan resolve, and moral bankruptcy of Pres. Trump's supporters.

  • Jeff_Kleppe||

    You sure have a lot to say. I wonder why it is you hide behind a pseudo. Surely you aren't scared to have your opinions associated with your true name? After all, you are one of our "betters".

  • Rev. Arthur L. Kirkland||

    Several of the Conspirators know precisely who I am.

    I do not know whether I am among your betters. Are you bigoted and backward? Are you a faux libertarian? Are you a half-educated rube? Are you among the ardent Trump supporters? Depending on circumstance, you could be among my betters.

  • Kazinski||

    "Several of the Conspirators know precisely who I am."

    Why would you do that to them? If they know who you are outside of VC context they must cringe everytime your name comes up.

    Have you no decency?

  • Rev. Arthur L. Kirkland||

    Not all of the Conspirators are reflexive partisans.

  • John Galt Jr||

    As we've both seen,. Rev, goobers have hissy fits when,
    1) They cannot rebut "Satan," cuz they're incapable.
    2) Different points of view "trigger" snowflakes right and left

    The very thuggiest WHINE about aliases -- ignorant that MOST online ids have always been aliases. Many use aliases, in fear of being tracked for personal bullying at home.

    Other goobers whine that you're my sock, I'm your sock, or we're both socks of Hiln,. One SUPER wacko bellows that all three of us are Mary Stack. HE bellows a bit, then posts Mary Stack's home address. He's only one, and the craziest. But MANY cyber-bullies here SEEM nasty enough for tracking and offline bullying. Aggressors with authoritarian mentalities.

    ==

    Popehat, a top civil liberties website, once posted … http://bit.ly/2ULGXer

    "Reason …. whose clever writing is eclipsed only by the blowhard stupidity of its commenting peanut gallery

    Its judges like these that should be taken out back and shot.

    It's judges like these that WILL be taken out back and shot. .

    Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.

    Why do it out back? Shoot them out front, on the steps of the courthouse.

    I hope there is a special place in hell reserved for that horrible (judge).

    Fuck that. I don't want to pay for that cunt's food, housing, and medical. Send her through the wood chipper.

    ==

    Like 12-year-olds comparing dicks!

  • SimonP||

    An attorney is only an agent. Their actions are the actions of the principal. Their role is to advise and generally not to engage in illegal actions, but if Trump directed Cohen to do something, and Cohen did it, the mere fact that Cohen was a lawyer at the time doesn't mean it's not Trump's crime.

    It's like saying it's perfectly okey-doke for the President to order his lawyers to kill people on his behalf. The lawyers are supposed to know it's wrong, so the President is off the hook!

  • TwelveInchPianist||

    "An attorney is only an agent."

    Sure, but when you direct an attorney to do something, you expect them to do it in a legal manner, or at least advise you if what you're directing them to do is illegal. This is not necessarily true with any other agent.

  • Sarcastr0||

    In criminal law the inevitable result of one's actions is considered to be wanted by the actor.

    If Trump ordered his attorney to do something that he knew could only be accomplished illegally, that's tantamount to intent.

    Thus, if he ordered Cohen to make a payment, but in such a way that it didn't show up on the books, most people would be in trouble.

  • TwelveInchPianist||

    "In criminal law the inevitable result of one's actions is considered to be wanted by the actor."

    Generally the inevitable result of asking your lawyer to do something is that it gets done legally, or you get told that the can't be done legally. That's why you ask a lawyer to do it.

    If they can show that Trump knew that it could only be accomplished illegally, or that he intended for it to be accomplished illegally, then sure.

  • M.L.||

    It appears Michael Cohen could have accomplished the same thing for his client in a perfectly legal way. But he's a dumb Cooley grad (forgive the elitism) who probably never even thought of campaign finance laws while doing this.

  • Brett Bellmore||

    Probably because the payoffs began in 2014, before Trump was running for President. You don't generally say, "This is perfectly legal, but might be questioned if you decided to run for President. So let's form a campaign committee in order to be able to report it for your hypothetical campaign."

  • gormadoc||

    Cohen honestly seems like just a shitty lawyer. He's experienced with shady deals but is not the smartest dude. I'm pretty sure Trump picked him more for loyalty than anything.

  • Krayt||

    "What you don't need is a criminal lawyer. What you need is a...criminal lawer. 'tsall good, man!"

  • SimonP||

    Maybe so. Doesn't exculpate the principal.

  • E Blackadder||

    Bullshit and double bullshit.

    If you called me and asked me to solve a problem for you, and I call you the next day and advise you on a course of action, but fail to disclose that course of action I am recommending is a crime, how are you criminally responsible? You relied on me to give you legal advice. Unless you knew that the course of action is criminal and agree to go along with it, you lack the necessary mens rea to be held criminally liable.

    One more thing: a lawyer who commits a crime at his client's request is not acting as an "agent" of his client...he is acting as a co-conspirator.

  • M.L.||

    Correct. SimonP's argument is overtly ludicrous, if I understand correctly, because the entire theory rests on the premise that Trump didn't make these expenditures himself, and Michael Cohen could have easily done this legally by making it clear that Trump did make the expenditures himself.

  • SimonP||

    Unless you knew that the course of action is criminal and agree to go along with it, you lack the necessary mens rea to be held criminally liable.

    This is simply not how criminal law works.

  • E Blackadder||

    No?

    That is precisely how the law works when a crime specifies "intent" as a element that the prosecution must prove. And "intent" is a necessary element to prove a criminal violation of the campaign finance laws.

  • SimonP||

    Don't shift the goalposts. You asserted that "unless you knew the course of action is criminal and agree to go along with it, you lack the necessary mens rea to be held criminally liable," not simply that many crimes requires a specific intent in order to result in criminal liability.

    If Trump directed Cohen to pay off his mistress in order to help his campaign, and that this contribution remain undisclosed, he acted with the requisite intent, regardless of whether he fully grasped that it was a criminal course of action.

  • Brett Bellmore||

    "If Trump directed Cohen to pay off his mistress in order to help his campaign,"

    You've written the conclusion into your hypothetical. That he did it to help his campaign is precisely what you'd have to prove. Since he started the payoffs before becoming a candidate, and people DO pay hush money even when they're not running for office, you actually have to PROVE the intent was to help his campaign, not to keep his wife from being pissed off, or avoid damage to his brand, or whatever.

  • aluchko||

    You've written the conclusion into your hypothetical. That he did it to help his campaign is precisely what you'd have to prove.

    I believe two of his co-conspirators (Cohen and Pecker) have given testimony to that precise fact. That the arrangement with AMI was precisely to catch stories that might harm the campaign, and Trump was in the room for those arrangements.

    Now I don't know if Trump realized that would be illegal (though he definitely should have from Edwards) but he certainly understood it was wrong or he wouldn't have gone through such lengths to disguise the payments.

    It's probably not impeachable on it's own, but in 2021 I see no issue with Trump walking out of the White House and into a jail cell.

  • Brett Bellmore||

    "I believe two of his co-conspirators (Cohen and Pecker) have given testimony to that precise fact."

    And if that's the case, Trump's defense would have to be that they perjured themselves doing it, and likely that the perjury was suborned by Mueller and/or his staff.

    Since Mueller was stupid enough to hire prosecutors who have a history of suborning perjury, this might not be such a weak defense...

  • Formerly Known as Stash||

    But how does that apply to the McDougal/Pecker situation?

  • Kazinski||

    But the law on campaign finance clearly states the violation has to be knowingly to be criminal, otherwise its civil.

  • Brett Bellmore||

    It also states that the campaign has to be the "but for" cause of the expenditure, and Trump's hush money payoffs date to before he ran for President.

    If you would have spent the money anyway, it's not a campaign expenditure, even if it aids your campaign.

  • DjDiverDan||

    There is one very significant difference between the Edwards case and the Trump case that everyone seems to overlook; in the case of John Edwards, the funds used to pay his mistress came from outside donors, donors who were bound by legal limitations on how much they could contribute to a campaign, limits which were exceeded by the payoffs, limits which Edwards was aware of, and which he knew were being violated. BUT in Trump's case, the funds came from Trump's own pocket, and a candidate is legally permitted to spend as much of his own funds as he or she wants to, without limit, on his or her own campaign. SO, were Trump's payoffs to control his own brand of "bimbo eruptions" sleazy? Sure. Were they illegal as campaign finance violations? No. Period.

  • M.L.||

    As I understand it, the entire theory rests on the premise that these funds did NOT come from Trump's own pocket. Which appears to be questionable at least -- right?

  • Brett Bellmore||

    The allegation in this case isn't that they were illegal in and of themselves, but only in the sense of not complying with reporting requirements. Which candidates must comply with even when spending out of their own pocket.

    But, as Trump has a history of hush payments before running for office, (Indeed, some of the payments Cohen is testifying about came before he ran for office.) you'd have a really, really hard time clearing the "would have spent the money anyway" hurdle. Failing that, they're not campaign expenditures in the first place, and as such are not subject to reporting.

  • SimonP||

    You're perfectly correct in noting that Trump has a history of these hush payments, and that making a hush payment to protect his personal reputation wouldn't be illegal.

    Which makes it odd that we have Cohen and AMI both admitting that the requisite intent to influence elections was behind their payments, and cooperating with the federal government. If the facts and evidence were ambiguous on the point, you'd think they'd be telling the government to pound sand, wouldn't you?

  • Kazinski||

    You seem to be ignoring what the law says defining personal expenses, making it illegal to use campaign funds to pay:

    "used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign."

    I don't think anyone would dispute that Trumps affair was not a legitimate campaign activity, and that he'd like to keep the affair secret "irrespective" of the campaign.

  • rsteinmetz||

    But did he use campaign funds? Cohen paid as Trumps lawyer and Trump reimbursed him. Was it with campaign funds, personal funds or business funds? IF it was a personal expense he would have made anyway to hide it from his wife or protect his business then it's not a campaign expense. The whole thing is pretty circular.

  • DjDiverDan||

    Ellis Wyatt is apparently completely unfamiliar with the old addage that it is better to remain silent and be thought a fool than to open one's mouth and remove all doubt.

  • Brett Bellmore||

    You're assuming that Mueller didn't simply use leverage over them that came from being able to prove some unrelated crime, the coerce them into making these "admissions".

    You don't tell the prosecutor to pound sand if the prosecutor can tell you to pound rocks.

  • SimonP||

    I'm not assuming anything about Mueller's strategy, and neither should you.

    What we know is what Cohen is saying, publicly. He pleaded guilty to a crime that implicates the president and is out there doubling down on what he's pleaded guilty to. The president, a known liar who is on record lying about this very course of conduct, is trying to get us to believe that Cohen is himself lying to get out of a harsher penalty for some other criminal activity.

    You apparently believe him. Why, I can't imagine.

  • TwelveInchPianist||

    "You apparently believe him. Why, I can't imagine."

    I certainly don't think Trump's statements should be given any weight. But Cohen is also a known liar, and is making his statements under duress.

    You apparently believe him. Why, I can't imagine.

  • Rev. Arthur L. Kirkland||

    But Cohen is also a known liar, and is making his statements under duress. You apparently believe him. Why, I can't imagine.

    The important point in this context is that the Mueller team relies on evidence instead of on your imagination.

  • MatthewSlyfield||

    "He pleaded guilty to a crime that implicates the president and is out there doubling down on what he's pleaded guilty to."

    He also plead guilty to charges of bank fraud and tax fraud that had nothing to do with either Trump or the 2016 election.

  • Kazinski||

    It may have been a crime for Cohen, assuming he believed it was illegal, but it's not a crime for Trump if he believed his actions were legal.

    Why would Trump think its illegal to pay off a pornstar with his own money? If he (or Cohen for that matter) thinks its illegal he'd hardly get the agreement in writing either.

    Its pretty clear to me Cohen plead guilty to the campaign finance charges to get a deal on the entirely unrelated charges he faced on his own personal finances.

  • Brett Bellmore||

    Bingo: Mueller gave him the script, and he read it, in return for getting off on unrelated charges. He'd have said basically anything to avoid spending the rest of his life in prison.

    That's all that's going on here: Mueller told him the role he'd have to play to minimize his time in prison, and he's playing it.

  • Ben of Houston||

    Simon, we're not assuming a strategy. It's blatant to anyone who's watching. It requires as much assumption as "They plan to get a guy onto base and then get him home". The exact details aren't clear, but the direction might as well be written in burning letters a hundred feet high.

  • M.L.||

    I thought this was not a failure to report issue, which is more minor and what Obama did, but the supposedly more serious issue of an illegal contribution in excess of limits, because Trump didn't pay it.

  • Brett Bellmore||

    It's kind of a round-robin thing: Every time it's pointed out that some version of what's alleged isn't really a crime, or doesn't fit the facts, they change what's alleged.

  • M.L.||

    LMAO!

  • M.L.||

    LMAO!

  • skeptical-chicago||

    Since Edwards went to trial and was acquitted, wouldn't the precedent be that hush money is not a crime? And how is the Trump case stronger? Edwards had donors pay off the mistresses and was acquitted, Trump used his own money so somehow that is a strong campaign finance issue?

  • Alan Vanneman||

    Jury trial outcomes are not precedents. Read the Post article.

  • mad_kalak||

    And that's the part of that that bespeaks the Machiavellian nature of Mueller the most. A president isn't indicted by his own DOJ, so there is no way for Trump to defend himself legally until out of office when if the statute of limitations doesn't run out on this, he will be charged by President Beto. Mueller has made it so that Trump won't give up the sword (the bully pulpit) and shield (the pardon power) that the presidency gives him by resigning and just going away like Nixon did, because have Pence pardon him would be admitting that he did something illegal.

  • Brett Bellmore||

    No, I think what really bespeaks the Machiavellian nature of Mueller the most, is this: You know the prosecutors were professionally sanctioned for suborning perjury in order to get Ted Stevens fraudulently convicted?

    Mueller hired them.

  • Social Justice is neither||

    So birds of a feather there.

  • mad_kalak||

    Right, I suppose that tops it off like icing on the cake. It tops even telling Flynn that he didn't have to have a lawyer present as it was just supposed to be an informal meeting.

  • Brett Bellmore||

    But, you want Karma? Guess who the judge is that's handling Flynn's sentencing?

    Yeah, the judge who sanctioned them. Funny how life works out.

  • mad_kalak||

    Ah, so that's funny, and that explains why I heard on the radio that there are newfound questions by the judge looking into it. Flynn's hosed regardless, his best bet is a pardon. So even if that does happen, he will be broke, his good name destroyed, but hey, he won't be in prison. He will have plenty of time to read up on stoic philosophy unless some friend of a friend hooks him up with a cushy think-tank job for his loyalty.

  • Brett Bellmore||

    Yeah, he's already bankrupt, he plead guilty to avoid bankrupting his family, too. At this point he's destroyed, which is, I guess, why Mueller agreed to as little as zero days in jail.

    Basically the best the judge can do for him at this point is agree to zero time. If he throws out the plea deal, Mueller is free to put Flynn through the wringer a second time.

  • Brett Bellmore||

    What's lame about it? In a high profile political case, Mueller went and hired prosecutors who have a history of suborning perjury in order to obtain a fraudulent conviction in a high profile political case.

    That was either mind bogglingly stupid, or unethically hiring the right guys for the job. Either way, it happened.

  • ME2R||

    Are google and fb biased social media an unreported in kind campaign violation? Did not their news manipulation seek to influence an election?

  • dangfitz||

    Why would he use campaign funds? Isn't $130K chump change to him?

  • gormadoc||

    The problem is that he used the money to "influence [an] election" without noting it as a campaign expenditure, not that he necessarily misused campaign funds. Whether it should be illegal or not it appears right now that it most likely is, although this will probably be one long and tiring legal battle either way.

  • MatthewSlyfield||

    If he would have spent the money on the same thing anyway (and the payments to both porn stars started before he threw his hat in the ring) it can't count as "to influence an election".

  • Alan Vanneman||

    It might interest people to know that Bradley Smith thinks all campaign finance law is either wrong-headed, unconstitutional, or both. That's why Republicans gave him the job as head of the FEC. Reason conducted a long interview with him back in the day.

  • TwelveInchPianist||

    Is there any evidence of Cohen's intent outside of his allocation? That is, is there any reason to think they could have gotten Cohen to plead to the campaign finance violation without the tax violations as leverage? If so, Cohen's claims of his or Trump's intent get zero weight.

  • SimonP||

    If we were to apply this standard with any kind of consistency, we would similarly have to disbelieve virtually 100% of what Trump himself says.

  • Sarcastr0||

    Not sure what's up with the people arguing that any voluntary in kind support is the same as an explicit payment. Courts make much more fine distinctions a lot more often than this.

  • E Blackadder||

    I see that the "three prominent DC attorneys representing a range of political viewpoints" curiously left out the one defense Trump has that isn't a "bad defense;" namely, that he did not know that the hush money contracts constituted campaign expenditures subject to the campaign finance laws. If the prosecution can not prove that Trump had the necessary mens rea, the prosecution will be in trouble.

  • Sarcastr0||

    I wonder how his tweets might factor into that case.

  • Bob from Ohio||

    "curiously left out "

    I doubt you are all that curious.

    We got an establishment GOP never trumper, a Dem never trumper and a McCain-ite never trumper. Its a very broad range.

    "What kind of music do they play here? Both kinds, country and western"

  • E Blackadder||

    I see.

    Reminds of the last time I listened to NPR. I heard what was supposed to be a panel discussion presenting a "range of perspectives" on police violence.

    The first guest declared that racist white cops were maliciously murdering young black men in cold blood. The second guest offered a different view: that in cold blood, racist white cops were maliciously murdering young black men. The third guest disagreed. In his view, young black men were being maliciously murdered by racist white cops.

  • SimonP||

    Agreed - they really needed more advocates for police violence.

  • Jmaie||

    Perhaps the choice is not quite so binary?

  • Ridgeway||

    I don't think that is the right way to look at the mens rea element. The intent that the prosecutor needs to show was the intent to affect the election, not an intent to break a given law. This is the whole "ignorance of the law is no defense" chestnut.

  • MatthewSlyfield||

    "This is the whole "ignorance of the law is no defense" "

    It is if you are a cop.

  • M.L.||

    "the statute defines "personal use" as any expenditure "used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign."......At the very least, the law is murky about whether paying hush money to a mistress is a "campaign expense" or a personal expense. "

    Yes, and in Trump's case, he has a long history of making these sorts of payments long before any kind of political campaign. So it's very compelling that this would be a personal expense for him.

    "In such circumstances, we would not usually expect prosecutors to charge the individuals with a "knowing and willful" violation, leading to criminal charges and possible jail time. A civil fine would be the normal response."

    Yes, just as Obama's larger dollar campaign finance violations resulted in a civil fine. But for some reason, that wasn't the story of the century. Barely anyone ever heard about it. Gee, HOW PECULIAR? It's almost like this and the Russia hoax is all due to the blind rage Trump has instilled in his political enemies (which have constituted nearly the entire bipartisan political establishment and the administrative state itself).

    "three prominent DC attorneys representing a range of political viewpoints"

    Meh. They represent the same political viewpoint to a large degree.

  • M.L.||

    This is crazy!

    Mueller Team Scrubbed Peter Strzok's Texts Before Giving Phone to Inspector General

    Perhaps Mueller is the one in violation of the law. Did he properly fulfill his legal obligations vis a vis the Inspector General?

  • Brett Bellmore||

    I expect he'll get away with it on the basis of just following standard procedure.

    Mind, the standard procedure was deliberately crafted to destroy evidence, but it's still going to be a strong defense, because it wasn't crafted by Mueller.

    Increasingly government agencies like the FBI and IRS are adopting "data retention" plans that would be more honestly described as evidence destruction plans.

  • M.L.||

    Looks like obstruction of justice.

    They also "lost" Lisa Page's phone for over a year, then suddenly produced it (scrubbed as well).

  • Krayt||

    "Dump as soon as the law allows." Corporations use that, too.

  • Goju||

    IIRC, didn't Cohen pay Daniels out of his own pocket and then Trump repaid him? Seems that was the original story. If so, then wouldn't this be a personal transfer of money? Or, did Trump pay Cohen out of campaign accounts? Then would it matter if the account was funded solely by Trump? What is the applicable finance law on this? Does anti-matter fall up?

  • gormadoc||

    The problem is the rather thorny idea of whether or not it was done to influence the election. If yes, then it should have been reported. It seemed at first more a failure to note it (if only to be safe) but after Cohen gave some information it may now be a problem with the amounts, as he claims it was done to prevent her from making Trump look bad during the election. Whether he's telling the truth or not still remains to be seen, but Trump has not been helping himself on the matter with his own inconsistency.

  • M.L.||

    That's not fraud in a legal sense. It's fraud in a colloquial sense, i.e. deception, in this case intended to conceal an extramarital sexual affair. Most people who have extramarital affairs do this.

  • mad_kalak||

    Writing things in bold and all capital letters doesn't make anything you say more right or wrong. Look, watch this:

    THE SKY IS NOT BLUE, IT IS ACTUALLY NEON GREEN!!

    and

    GRANT AND HIS WIFE ARE BURIED IN GRANT'S TOMB!!!

    Neither statement is made more, or less, correct, because you have a teenage tempter tantrum on a site called "Reason" of all things.

    Sweet Jesus, you're the type of person that makes me think that maybe those involuntary commitment laws still should be around and aren't a bad idea after all.

  • mad_kalak||

    p.s. I won't be checking the Reason till Monday, so make your pithy comeback Hiln and feel like you've gotten my good with a zinger or two. I'm sure it will knock the socks off anyone who strolls by the comments section and gives a shit about what you think.

  • M.L.||

    This was hilarious!

  • gormadoc||

    I wouldn't bother responding to him. It's just Hihn being Hihn.

  • mad_kalak||

    Hell, even RAK isn't such a douchey little bitch as that guy. The fact that he changes his name all the time, yet still posts the same rat tail way so it's obvious who he is, makes you question his sanity.

  • gormadoc||

    Sadly, Hihn is the real deal. He's got problems and has been trending down for a long time. If you read his earlier stuff, from his website or the one comment he made before his years of ranting, you can see a serious decline.

  • M.L.||

    Georgie Porgie tweeted that Trump doesn't deserve loyalty from anyone, such as his wife Kellyanne. Maybe this is about jealousy of his wife's fame and relationship with the President?

    I mean, we know that for him there is more than just a potential campaign finance violation. Georgie Porgie has been crowing about Trump all along. He seems to quite enjoy his little ray of limelight.

  • Sarcastr0||

    Georgie Porgie?

  • M.L.||

    Do you like the nickname? I thought it was pretty good.

  • Krayt||

    ===They also express justified dismay at the arguments, made in some circles, that it doesn't matter whether Trump violated the law because he has partisan opponents -- as if that is legally relevant or could somehow excuse otherwise illegal conduct.===

    It shouldn't excuse it. But arguably it would not have been found out without a desire of one faction to use the power of government to harm their political opponents.

    Just like the Republicans did with Edwards, and Bill Clinton before him.

    Anyway, the 4th isn't about protecting innocent people per se. It's about stopping the king from filching willy-nilly through an opponent's papers looking for something, anything, *even a legitimately illegal thing*, to tag them with and thus remove one more challenger to their power.

    Now the loudmouth Donald "Lock her up!" Trump played this game as well as the earlier Republicans, so I have nothing to say other than the wisdom of the Founding Fathers in this issue is disturbingly verified again and again and again.

  • Kazinski||

    The facts in the Edwards case were so much worse than the Trump/Stormy affair it's hard to compare the two and say Trump should have been on notice that DOJ would consider it a crime.

    First the evidence was that Edwards hired Hunter on his campaign specifically to facilitate the affair. That is pretty clearly a knowing violation, especially for a lawyer. Then he had contributors make the payments to Hunter to keep it quiet rather than use his own funds.

  • Armchair Lawyer||

    It's a very weak case for the prosecutors....

    Let's review the facts. Cohen, Trump's long term lawyer, pays expenses, that Trump then reimburses. The supposed campaign finance violation is a short term "loan" that is then repaid, for a relatively small amount.

    First there is the ambiguity between personal and campaign expenses. Personal expenses, simply are not allowed by the FEC. They include many items that can "influence" a campaign. Haircuts, clothes, etc.

    Second, if it was a campaign expense, why would Trump use personal funds to reimburse Cohen, as opposed to campaign funds? This is a very important point. If Trump considered it a personal expense, he would use personal funds. If Trump considered it a "campaign" expense, you know he'd use campaign donations.

    Third, you have ex-FEC chairman, on the record, saying it's not clear, at best, if it's a campaign or personal expense, and it's probably a personal expense. Think that won't come up as an expert witness?

    Forth, if you're really "unlucky", Trump will have at least one other NDA payoff in his history, showing a history of this being personal expenses for him.

    Fifth, if you're looking at the spirit of campaign finance law, you're looking at people aiming to influence the candidate through excessive donations. That's not the case here, especially with a prompt reimbursement.

    No reasonable jury here could convict

  • John Galt Jr||

    It's a very weak case for the prosecutors....

    You have EVERY fact WRONG. are clearly ignorant of the facts. And TOTALLY unqualified to state such conclusions … All of while FAIL the smell test! Do you know the skills level of an "armchair quarterback

    Let's review the facts.

    FAIL #1. You have NO relevant facts

    Trump's long term lawyer, pays expenses, that Trump then reimburses. The supposed campaign finance violation

    FAIL #2. YOU later say the exact opposite!

    First there is the ambiguity between personal and campaign expenses. Personal expenses, simply are not allowed by the FEC. They include many items that can "influence" a campaign. Haircuts, clothes, etc.

    FAIL #3. You later say the opposite here, too.
    FAIL #4. Anti-rational.

    Second, if it was a campaign expense, why would Trump use personal funds to reimburse Cohen, as opposed to campaign funds?

    FAIL #5. Begging the Question Fallacy …. or an intentional lie.

    If Trump considered it a personal expense, he would use personal funds. If Trump considered it a "campaign" expense, you know he'd use campaign donations.

    FAIL #6. He'd pay it with personal funds to ... HIDE HIS CRIME … duh … Which is precisely what he did! .
    Sure fooled you!

    Cont'd

  • Formerly Known as Stash||

    If Pecker explicitly offered an illicit campaign contribution, and Trump accepted it on those terms, then there is a very strong case for a violation. If Trump came to him and asked him to "protect his marriage" because past paramours would be coming out of the woodwork during the campaign, I think there would be no crime.
    In the face of explicit evidence that the contribution was meant as campaign assistance, Trump would have to claim that though it was offered to help the campaign, he did it to protect his marriage. Yet that defense only disposes of Count 1. Conspiracy requires only agreement to further the admitted illegal goal of Pecker and Cohen. Agreeing to illegal acts, even if for personal and not campaign reasons, makes him liable for conspiracy.
    Hence, if there is evidence of a discussion with Trump in the room that it was explicitly intended as a campaign contribution, his agreement, not his intent, makes him liable.

  • Josh R||

    Could Trump argue that Cohen and Pecker did not commit a crime even though they have plead guilty to doing so? Is a guilty plea the equivalent of guilty verdict from a jury? Can a subsequent jury reach a different opinion given the same set of facts?

  • Brett Bellmore||

    Of course he can argue that. Just because I plead guilty to conspiring to murder somebody with you, doesn't mean you don't get to argue that I perjured myself in the plea deal. Pleading guilty doesn't put the testimony beyond challenge.

  • Josh R||

    Assuming that Trump isn't challenging Cohen's testimony, could he still argue that Cohen didn't commit a crime because the payments would have been made irrespective of the campaign, and thus as a matter of law, Cohen didn't make a campaign donation.

  • Josh R||

    I think Trump has a plausible argument that he made the payments and only used Cohen as his intermediary (this argument will require that Trump acknowledge that he directed the payments to be made). As I understand the timing of the payments, Trump would then be guilty of only failing to report the payments. But the reporting wasn't due until after the election. So, his possible criminal activity could not have influenced the election. Thus an impeachment charge would need to conclude that the payments themselves were "high crimes" rather than the criminal conduct that followed after the election. That conclusion doesn't strike me as sound.

  • Liberty Lover||

    Did Trump Violate Campaign Finance Laws? Probably, but then probably so did every other politician running for office. The others are just not being investigated.

  • yoyo||

    I don't get why "the legal theory against Trump [is] stronger because of the Edwards precedent." So the idea is that Trump was on "fair notice" that federal prosecutors are likely to charge someone with a campaign finance violation in Edwardsian circumstances. Surely that is no reason at all to find the "legal theory" that those kind of payment are campaign expenditures stronger. Substitute some federal prosecutorial practice that is obviously dumb or silly, some wildly implausible interpretation of the law. Separation at the border? I'm sure there are many one could think of. But the point is that the practice of prosecutors does not affect the legal weight of a theory at all. I think we can put it that bluntly.

    One could check this out but I imagine there were court decisions in the Edwards case that indicated that the prosecutorial theory passed some level of scrutiny (motion to dismiss? MSJ?). That would have some weight on indidicating that the legal theory has some merit. Although of course that would be a district court decision (not super weighty), in a different circuit than the one where Trump's conduct took place. So that district court decision would surely not weigh much at all. Basically I would think it would be a de novo question...

  • David Nieporent||

    Surely that is no reason at all to find the "legal theory" that those kind of payment are campaign expenditures stronger

    It's a reason to disbelieve his factual claim that he had no reason to think it was illegal.

  • swood1000||

    Everyone knew that Edwards was on trial for having donors make payments to his mistress to help fund his campaign. This put Trump and everyone else on fair notice that federal prosecutors were treating such payments as reportable campaign expenditures… Not only is the legal theory against Trump stronger because of the Edwards precedent…

    Why does the knowledge that the prosecutors consider X to be a crime make the legal theory against the defendant stronger?

    And there's great evidence of consciousness of guilt: the use of the LLC and AMI to launder the payments; the denial for more than a year that the payments were made; the disguising of the reimbursements to Cohen from the Trump Organization as payments for legal services and technical services.

    Why is this evidence of consciousness of guilt of FEC violations instead of evidence of the harm that such disclosures would have on the Trump brand?

    Cohen and Trump refused to pay off Stormy Daniels until October 25, 2016, just before the election and after the release of the "Access Hollywood" tape, when Daniels had threatened to give an interview to a media outlet about their sexual encounter.

    The blackmailers used the federal elections to time their disclosures. That doesn't make it and election expenditure. Do those arguing that it was an election expenditure also argue that Trump would not have violated federal campaign laws if he had made the payment as a campaign expense?

  • ThePublius||

    "Did Trump Violate Campaign Finance Laws?" Short answer: no.

    This is a ridiculous stretch on the part of the "get Trump" movement.

    If you examine the arguments offered, there is no way that Trump could have paid anyone anything in a way that isn't illegal. That should be the first clue that this is nonsense.

    Cohen is a liar. He was on with George Stephanopoulos yesterday and contradicted what he had said under oath several times.

    Check out George's interview of Rudy G. this morning. Rudy put the whole matter of Cohen to rest, in my opinion.

  • John Rohan||

    The more recent article by Bradley Smith in National Review is a much stronger one.

    And it brings up an interesting point. If the hush money payments are actually considered campaign expenses, then that means that Trump could have legally used campaign funds to pay them!

  • ReaderY||

    I think this argument - that campaign contributions are legal and protected by the First Amendment, and everything which is a campaign contribution is by definition a lawful activity and not a bribe - is probably the best argument to be made for a narrow definition of campaign contribution.

    Trump was attractive to a segment of voters in part because of his personal wealth. So if anything that influences voters can be classified as a campaign contribution, then giving a politician large amounts of personal wealth becomes a campaign contribution. The donor can simply cite Trump and say the purpose of making him wealthy Is to make him attractive to voters and influence the election. It therefore becomes a legal campaign contribution, protected by the First Amendment, and not a bribe at all.

    The category and crime of bribery simply vanishes. There is nothing one can give a politician that can't be spun as having a purpose of influencing an election. What was once obvious criminal corruption magically becomes constitutionally protected political speech.

  • iowantwo||

    The House of Representatives has paid out over $17million to protect congressmen from embarrassment and get them re-elected. None of that money was declared as a financial expense for their campaigns.

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