The prosecutor is twisting campaign-finance law.
Donald Trump’s wayward counsel, Michael Cohen, was sentenced today as part of a plea bargain with the government. As part of that settlement, Cohen has admitted to criminal violations of federal campaign-finance law and has implicated President Trump in those violations. The press is ablaze with headlines trumpeting the president’s possible involvement in two felony campaign-finance violations. The source of these violations are Mr. Cohen’s arranging — allegedly at Trump’s direction — hush-money payments to women alleging long-ago affairs with the 2016 presidential candidate.
The Federal Election Campaign Act holds that an “expenditure” is any “purchase, payment, loan, advance, deposit or gift of money, or anything of value, for the purpose of influencing any election for Federal office.” According to Cohen and the U.S. Attorney, the hush-money payments were, it appears, made in the hopes of preventing information from becoming public before the election, and hence were “for the purpose of influencing” the election. This means that, at a minimum, they had to be reported to the Federal Election Commission; further, if they were authorized by Mr. Trump, they would become, in the law’s parlance, “coordinated expenditures,” subject to limits on the amounts that could be spent. Since the lawful contribution limit is much lower than the payments made, and the payments were not reported, this looks like an open and shut case, right?
Well, no. Or at least not in the way some might presume. To the contrary, the law — following our common sense — tells us that the hush-money payments outlined by the U.S. Attorney are clearly not campaign expenditures. There is no violation of the Federal Election Campaign Act.
So what does it mean to be “for the purpose of influencing an[] election”? To understand this, we read the statutory language in conjunction other parts of the statute. Here the key is the statute’s prohibition on diverting campaign funds to “personal use.” This is a crucial distinction, because one of the primary factors separating campaign funds from personal funds is that the former must be spent on the candidate’s campaign, while the latter can be used to buy expensive vacations, cars, watches, furs, and such. The law defines “personal use” as spending “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” So a candidate may intend for good toothpaste and soap, a quality suit, and a healthy breakfast to positively influence his election, but none of those are campaign expenditures, because all of those purchases would typically be made irrespective of running for office. And even if the candidate might not have brushed his teeth quite so often or would have bought a cheaper suit absent the campaign, these purchases still address his underlying obligations of maintaining hygiene and dressing himself.The settlements in this hypothetical are made “for the purpose of influencing the election,” yet they are not “expenditures” under the Federal Election Campaign Act. Indeed, if they were, the candidate would have to pay for them with campaign funds. Thus, an unscrupulous but popular businessman could declare his candidacy, gather contributions from the public, use those contributions to settle various preexisting lawsuits, and then withdraw from the race. A nice trick!
When faced with the vague, sweepingly broad “for the purpose of influencing any election” language, the Supreme Court has consistently restricted its reach to brightly defined rules. For example, in determining whether a public message was an “expenditure” made “for the purpose of influencing any election,” it has construed the later phrase to apply only to messages “expressly advocating” the election or defeat of a candidate, such as “vote for,” “vote against,” “defeat,” “re-elect,” and the like, or to other clearly defined messages that are the “functional equivalent” of that express advocacy.
In short, Michael Cohen is pleading guilty to something that isn’t a crime. Of course, people will do that when a zealous prosecutor is threatening them with decades in prison. But his admissions are not binding on President Trump, and Trump should fight these charges ferociously.
.. Many Americans have convinced themselves that Trump is a uniquely dangerous and bad man, such that any available tool should be used to expel him from office. But in that way lies the bigger threat to our democracy and rule of law.In A Man for All Seasons, Sir Thomas More’s future son-in-law, Roper, states that he would “cut down every law in England” if it would enable him to catch the devil. To which More responds,
And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
We do ourselves no service by distorting and misapplying our campaign-finance laws in the hope of bagging Donald Trump.
Comments:I was wondering aloud the other day how the Trumpsters would move the goalposts yet again, and here you have it.
If Trump’s payments weren’t designed to influence the election, why didn’t he just wait to settle a few weeks later after the election?
Regardless, this is yet another article that shows just how far down the moral hell-hole the Republican party has fallen. Trump has *truly* brought the GOP to *his* level.
In previous iterations of the GOP, the fact that the president *lied* on Air Force One to our faces about his affair, and *lied* to the American people about his affairs just before an election, essentially voiding his election result…
The fact that we’re talking about two lurid affairs with *porn stars* he had while his (third) wife was at home with their baby…
Well, these sorts of things used to mean something to most Republicans. Not anymore I guess... jgbrownhornet
All that hypothetical entrepreneur would have needed to do was report the settlements to the FEC. Done. Cohen & Trump simply needed a better campaign finance lawyer. Amateurs.Oh Great! And his wife finds out about it anyway once the New York Times publishes the details of the settlement.
The whole point of paying extortion and blackmail is so the accusations DO NOT BECOME PUBLIC RECORD... kurtpiper
He committed OTHER CRIMES on which they had him dead to rights. The Prosecutors negotiated with his Clinton Lawyer for a shorter sentence if and only if Cohen would plead guilty to things that were not crimes.
Republicans, Don’t Fool Yourselves — Donald Trump Is in Serious Trouble
In response to the emerging evidence that Donald Trump directed and participated in the commission of federal crimes, all too many Republicans are wrongly comforting themselves with political deflection and strained legal argument. The political deflection is clear, though a bit bizarre. The recent wave of news about Trump’s porn payoffs is somehow evidence that investigators and critics are “shifting focus” from the Russia investigation to alleged campaign-finance violations.
It’s almost as if the campaign-finance news is taken as some sort of evidence that Mueller’s core investigation is faltering, so the media and investigators have to find something to use to attack Trump.
But the campaign-finance investigation has little to do with Mueller. It’s run by the U.S. Attorney’s Office for the Southern District of New York, and — besides — what do we want federal prosecutors to do when they discover evidence of unrelated crimes when engaged in a different investigation? Let bygones be bygones? Or refer that evidence to the proper jurisdiction — as Robert Mueller’s office did — for further investigation and potential prosecution?
.. The current wave of news reports is largely driven by court filings, and those court filings don’t represent a shift in law-enforcement focus on Trump but rather an arena of additional inquiry. The sad reality is that the Trump operation was a target-rich environment for any diligent investigator.
.. The Edwards prosecution failed not as a matter of law but of fact. The prosecution simply didn’t produce sufficient evidence to prove its case. Here’s Conway, Katyal, and Potter on the contrasts between the Edwards and Trump cases:
A key witness, Bunny [Mellon], was 101 years old and too frail to show up at trial. There were no written legal agreements providing money in exchange for silence, as there are in Trump’s case, and no threats by the mother of the child to go public immediately if the funds were not received. That’s why one juror told the media that the evidence wasn’t there to show even that Edwards intended the money to go to Rielle Hunter. In contrast, in a bombshell disclosure this week, the public learned that AMI, the parent corporation of the National Enquirer, is cooperating with the prosecution and has stated that the payments were made to influence the 2016 election. And even more worrisome for Trump, reports emerged Thursday that Trump was the third person in the very room where Cohen and David Pecker (the head of AMI) discussed the hush money payments — making it very hard for Trump to assert a non-campaign-related purpose
..So far, the best available evidence indicates that Trump’s commitments to Stormy Daniels didn’t exist “irrespective” of his campaign but rather because of his campaign. That’s Michael Cohen’s assertion. That’s AMI’s assertion. The affairs were relatively old — and so was the threat to his family — but the payments were new, rendered at a crucial time in a very close presidential contest.
.. Moreover, Cohen has indicated that prosecutors have a “substantial amount of information” that corroborates his testimony. And what is that information? Well, as the Wall Street Journal has already reported:
Mr. Trump was involved in or briefed on nearly every step of the agreements. He directed deals in phone calls and meetings with his self-described fixer, Michael Cohen, and others. The U.S. attorney’s office in Manhattan has gathered evidence of Mr. Trump’s participation in the transactions
Here is the fundamental reality, Republicans — there is already far more evidence of legal culpability against Trump than ever existed against Edwards, and a federal judge permitted the Edwards case to go to trial. It is true that, if Trump does eventually face indictment, a different judge may have a different view of the law, but if Trump is counting on a favorable legal ruling, he’s playing a dangerous game indeed.
.. Campaign-finance law is constructed from the ground up to require candidate transparency and guard against corruption. Thus, it is purposefully very hard for candidates to find a way to legally and quietly use substantial sums of money to cover up dirty deeds. In his essay, Smith argues, “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.”
That’s likely correct — and evidence that campaign-finance law is working as intended. In other words, if you’re a campaign-finance lawyer, and a candidate asks your advice on how to buy the silence of a porn star and hide that payment entirely from the American people, your best response should be, “Have you considered not running for office?”
With Facebook at ‘War,’ Zuckerberg Adopts More Aggressive Style
New approach causes turmoil, driving several key executives from the company and creating tensions with longtime Chief Operating Officer Sheryl Sandberg
Mark Zuckerberg gathered about 50 of his top lieutenants earlier this year and told them that Facebook Inc. FB -5.72% was at war and he planned to lead the company accordingly.
During times of peace, executives can move more slowly and ensure that everybody is on board with key decisions, he said during the June meeting, according to people familiar with the remarks. But with Facebook under siege from lawmakers, investors and angry users, he needed to act more decisively, the people said.
.. The 34-year-old CEO believes Facebook didn’t move quickly enough at key moments this year and increasingly is pressing senior executives to “make progress faster” on resolving problems such as slowing user growth and securing the platform, said people familiar with the matter. Mr. Zuckerberg also at times has expressed frustration at how the company managed the waves of criticism it faced this year... On Friday, that tension was on display when, during a question-and-answer session with employees at Facebook’s headquarters in Menlo Park, Calif., he blasted a fresh round of critical news coverage as “bullshit,” according to the people familiar with the remarks.One employee at the session asked if Facebook could deter leaks by publishing an internal report about how frequently offenders are found and fired. Mr. Zuckerberg said Facebook does fire leakers, but the root cause was “bad morale” perpetuated by attacks in the media.
.. He believes this tougher management style is necessary to tackle challenges being raised both internally and externally, according to a person familiar with his thinking... Mr. Zuckerberg’s new posture could trouble those who feel his “move fast, break things” mantra from Facebook’s early days contributed to many of the company’s current problems. It also has led to confrontations with some of his top reports, including Ms. Sandberg, who has long had considerable autonomy over the Facebook teams that control communications and policy... This spring, Mr. Zuckerberg told Ms. Sandberg, 49, that he blamed her and her teams for the public fallout over Cambridge AnalyticaMs. Sandberg later confided in friends that the exchange rattled her, and she wondered if she should be worried about her job... Mr. Zuckerberg also has told Ms. Sandberg she should have been more aggressive in allocating resources to review troublesome content on the site
.. The heads of some other key Facebook units didn’t survive conflicts with Mr. Zuckerberg.
.. The co-founders of WhatsApp likewise left after disagreements with Mr. Zuckerberg over how to generate more revenue from the messaging-service
.. More recently, Mr. Zuckerberg forced out Brendan Iribe, co-founder of Oculus VR, in part because of a disagreement about the future of the Oculus Rift virtual-reality headset
.. Facebook remains hugely profitable, with net income of more than $5 billion in the third quarter, but its margins are under pressure in part because of its increased spending on security.
.. Mr. Zuckerberg has said Facebook is in the midst of a three-year turnaround ending in 2019 to strengthen its defenses against the risks posed by having an open platform.
.. All told, about a dozen senior or highly visible executives disclosed their resignations or left Facebook in 2018. In May, Facebook announced a major reshuffling of top product executives in a way that helped free up Mr. Zuckerberg to oversee a broader portfolio within the company.
.. This turmoil at the top of Facebook has made it difficult for the company to execute on some product decisions and shore up employee morale, which has been sinking over the last year along with the stock price, which has fallen 36% since its peak. Many employees are frustrated by the bad press and constant reorganizations, including of the security team, which can disrupt their work, according to current and former employees.
.. Scrutiny of Facebook has only escalated in the past week after the New York Times reported its use of opposition-research firms tasked with exposing critical information about Facebook’s detractors, including one called Definers Public Affairs. Ms. Sandberg and Mr. Zuckerberg both said the decision to employ the firm was made by Facebook’s communications officials.
Why Hackers Aren’t Afraid of Us
a group of finance ministers to simulate a similar attack that shut down financial markets and froze global transactions. By several accounts, it quickly spun into farce: No one wanted to admit how much damage could be done or how helpless they would be to deter it.
.. something has changed since 2008, when the United States and Israel mounted the most sophisticated cyberattack in history on Iran’s nuclear program, temporarily crippling it in hopes of forcing Iran to the bargaining table.
.. the sophistication of cyberweapons has so improved that many of the attacks that once shocked us — like the denial-of-service attacks Iran mounted against Bank of America, JPMorgan Chase and other banks in 2012, or North Korea’s hacking of Sony in 2014 — look like tiny skirmishes compared with the daily cybercombat of today.
.. Yet in this arms race, the United States has often been its own worst enemy. Because our government has been so incompetent at protecting its highly sophisticated cyberweapons, those weapons have been stolen out of the electronic vaults of the National Security Agency and the C.I.A. and shot right back at us.
.. the WannaCry ransomware attack by North Korea last year, which used some of the sophisticated tools the N.S.A. had developed.
.. Nuclear weapons are still the ultimate currency of national power, as the meeting between President Trump and Kim Jong-un in Singapore last week showed. But they cannot be used without causing the end of human civilization — or at least of a regime. So it’s no surprise that hackers working for North Korea, Iran’s mullahs, Vladimir V. Putin in Russia and the People’s Liberation Army of China have all learned that the great advantage of cyberweapons is that they are the opposite of a nuke: hard to detect, easy to deny and increasingly finely targeted. And therefore, extraordinarily hard to deter.
.. Cyberattacks have long been hard to stop because determining where they come from takes time — and sometimes the mystery is never solved.
.. Today cyberattackers believe there is almost no risk that the United States or any other power would retaliate with significant sanctions, much less bombs, troops or even a counter cyberattack.
.. “They don’t fear us,”
.. At the State Department, the eviction took weeks, shutting down systems during negotiations on the Iran nuclear deal. The hackers were even bolder at the White House. Instead of disappearing when they were exposed, they fought back, looking to install new malware as soon as the old versions were neutralized.
.. It appears the attackers just wanted to prove they could go, and stay, anywhere in the American government’s network.
.. the United States never called out the Russians for what they were doing.
.. If Mr. Putin thought there was no price to be paid for invading White House systems, why wouldn’t he attack the Democratic National Committee?
.. By the summer of 2016, some Obama administration officials, waking to the threat, proposed counterstrikes that included exposing Mr. Putin’s hidden bank accounts and his ties to the oligarchs and cutting off Russia’s banking system. But the potential for escalation caused Mr. Obama and his top aides to reject the plan.
“It was an enormously satisfying response,” a senior American official told me later, “until we began to think about what it would do to the Europeans.”
Mr. Obama also understandably feared that anything the United States did might provoke Mr. Putin to tinker with election systems just enough to give credence to Donald Trump’s warning that the system was “rigged.”
.. Since the election, the American retaliation has included closing some Russian consulates and recreation centers and expelling spies — actions one Obama national security official called “the perfect 19th-century solution to a 21st-century problem.”
.. The wide-open vulnerabilities in America’s networks have essentially deterred the United States from credibly threatening retaliation against the Russians, the Chinese, the North Koreans and the Iranians.
.. One way to start is to make sure no new equipment goes on the market unless it meets basic security requirements. We won’t let cars on the road without airbags, so why do we do less with the systems that connect them to the internet?
.. Second, we must decide what networks we care most about defending — and make those priorities clear. Mr. Mattis’s threat to turn to nuclear weapons hardly seems credible — unless the cyberattack would create an existential threat to America. That requires an intensive public review of what is critical to our nation’s survival.
..President Trump forfeited the perfect opportunity when he decided against a commission to learn the larger lessons from the 2016 election.
.. the United States needs to end the reflexive secrecy surrounding its cyberoperations. We need to explain to the world why we have cyberweapons, what they are capable of and, most important, what we will not use them for.
.. it is in the nation’s interests to develop global norms clarifying that some targets are off limits: election systems, hospitals and emergency communications systems, and maybe even electric power grids and other civilian targets.
.. Microsoft’s president, Brad Smith, has proposed digital Geneva Conventions that begin to establish those norms, outside the structure of governments and treaties.
.. Intelligence agencies hate this idea: They want the most latitude possible for future operations in an uncertain world. But in any arms control negotiation, to create limits on others, you need to give up something.