The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.