michael-cohen

Michael Cohen Pled Guilty to Something That Is Not a Crime

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.

.. To reach the opposite conclusion, the U.S. Attorney is placing all his chips on the language “for the purpose of influencing an election.” Intuitively, however, we all know that such language cannot be read literally — if it were, virtually every political candidate of the past 45 years has been in near-constant violation. The candidate who thinks “I need to brush my teeth, shower, and put on a nice suit today in order to campaign effectively” is surely not required to report as campaign expenditures his purchases of toothpaste, soap, and clothing. When he eats his Wheaties — breakfast of champions, and surely one cannot campaign on an empty stomach — his cereal and milk are not campaign expenses. When he drives to his office to start making phone calls to supporters, his gas is not a campaign expense.

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.

.. To use a more pertinent example, imagine a wealthy entrepreneur who decides to run for office. Like many men and women with substantial business activities, at any one time there are likely several lawsuits pending against him personally, or against those various businesses. The candidate calls in his company attorney: “I want all outstanding lawsuits against our various enterprises settled.” His lawyer protests that the suits are without merit — the company should clearly win at trial, and he should protect his reputation of not settling meritless lawsuits. “I agree that these suits lack merit,” says our candidate, “but I don’t want them as a distraction during the campaign, and I don’t want to take the risk that the papers will use them to portray me as a heartless tycoon. Get them settled.”

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!

But in fact, the contrary rule prevails, because the candidate’s obligation to resolve the business’s lawsuits exists “irrespective” of the campaign. Similarly, any payments made to women by Mr. Trump or his associates are independent of the campaign.

To this intuitively obvious fact — very few people would think paying hush money is a legitimate campaign expenditure — those eager to hang a charge on Mr. Trump typically respond that he made the payments when he did because of the looming election. That may be true, but note that the same is true of the entrepreneur, who instructs his counsel to settle the lawsuits pending against him. Further, note that in both cases, while the candidate has no legal obligation to pay at all, the events that give rise to the claim against him are unrelated to the campaign for office. Paying them may help the campaign, but the obligations exist “irrespective” of the run for office. Mr. Trump’s alleged decade-old affairs occurred long before he became a candidate for president and were not caused by his run for president.

.. Further clinching the case, in writing its implementing regulations for the statute, the Federal Election Commission specifically rejected a proposal that an expense could be considered a campaign expenditure if it were merely “primarily related to the candidate’s campaign.” This was done specifically to prevent candidates from claiming that things that benefitted them personally were done because they would also benefit the campaign. And with that in mind, it is worth noting Mr. Cohen’s sentencing statement, in which he writes that he “felt obligated to assist [Trump], on [Trump’s] instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family.” (Emphasis in original.)

.. Certainly Mr. Trump had many valid, non-electoral reasons for trying to keep these allegations quiet,

most notably family harmony, protecting family members

(especially his young son, Baron), and

preserving his future viability as a television personality in case he lost the election. 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.

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:

Pat_Riot

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

4 days ago

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.

‘Individual 1’: Trump emerges as a central subject of Mueller probe

“There would have been nothing wrong if I did do it,” Trump said. “When I’m running for president, that doesn’t mean I’m not allowed to do business.”

Trump often grows aggrieved seeing Cohen on TV, aides say. Among White House advisers, Cohen is seen as an existential threat — as much or more so than the Mueller investigation itself because of his longtime role as Trump’s fixer. Trump’s legal team did not learn until Thursday that Cohen had sat for dozens of hours of interviews with Mueller’s office, according to a senior administration official.

.. Trump was infuriated earlier this year when Cohen released tapes of him, and asked his lawyers and advisers if anything could be done to stop him from releasing any more.

.. According to a person familiar with the investigation, Cohen and the Trump Organization could not produce some of the key records upon which Mueller relies. Other witnesses provided copies of those communications.

.. Many in the White House try to avoid talking with the president about the Mueller probe, for fear they will be subpoenaed. And both of the aides said it was unclear why Trump was complaining more about the investigation recently. During the midterm campaign, the president occasionally told advisers that people had forgotten about the Mueller probe and remarked positively that it was no longer dominating TV headlines.

The Year Justice Caught Up With Trumpworld

In 2018, impunity came to an end.

Ever since the 2016 election, it’s been common for some people to refer to whatever year we’re in as a synonym for dystopian weirdness. (Last year, for example, CNN’s Jake Tapper tweeted “Peak 2017” about a headline saying, “US ambassador denies own comments, then denies denial.”) The world has felt continuously off-kilter, like a TV drama whose writers developed a sudden fondness for psilocybin. Last month astronomers at Harvard wrote that a strange oblong space object “may be a fully operational probe sent intentionally to Earth vicinity by an alien civilization,” and it barely made a ripple in the news. There was simply too much else going on.

Amid this ceaseless barrage, things many of us have taken for granted have been called into question, including the endurance of liberal democracy, the political salience of truth and the assumption that it would be a big scandal if a president were caught directing illegal payoffs to a pornographic film actress. Often it feels like in American politics, none of the old rules still apply.

.. But in 2018, they did. (At least some of them.) Alien probes aside, this was a year in which things started to make sense again. The Democratic landslide in the midterms proved that the laws of political gravity haven’t been suspended; Trump’s incompetence, venality and boorishness had electoral consequences. Further, it was a year of justice and accountability for at least some of those who foisted this administration on the country. An awful menagerie of lowlifes was swept into power by Trump’s victory two years ago. In 2018, at least some of them started to fall back out again.

.. At the beginning of 2018,

Michael Cohen was still Trump’s loyal personal lawyer.

Paul Manafort, Trump’s former campaign chairman, was sleeping in his own bed at night.

Rick Gates, Manafort’s deputy, had not yet made a plea deal with Robert Mueller, the special counsel.

Mueller’s investigation hadn’t yet sent anyone to prison.

The Dutch lawyer Alex van der Zwaan, who pleaded guilty to lying to the F.B.I. about work he’d done with Gates for the former Ukrainian president, became the first, in May.

He was followed by Richard Pinedo, seller of fake IDs and fraudulent bank accounts,

and former Trump campaign adviser George Papadopoulos.

When this year began,

Scott Pruitt was still indulging in spectacular corruption as head of the Environmental Protection Agency.

Omarosa Manigault Newman had just been fired from her senior administration job and had not yet revealed her stash of secret recordings.

Rob Porter, who has been accused of abuse by two ex-wives, was still White House staff secretary.

David Sorensen, accused of abuse by one ex-wife, was still a White House speechwriter.

At the start of 2018, the

casino mogul Steve Wynn was the Republican National Committee’s national finance chairman. He resigned after The Wall Street Journal reported that he’d been accused of committing multiple acts of sexual harassment and assault. (Wynn denied assaulting anyone.)

Elliott Broidy, owner of a private security company, was an R.N.C. deputy national finance chairman. He resigned after The Journal reported that he’d paid hush money to a former Playboy model who said she’d had an abortion after he got her pregnant.

(Cohen was also a deputy chairman; he resigned in June.)

As this year began,

Steve Bannon, Trump’s former campaign head and chief White House strategist, whose sympathy for white nationalists did so much damage in so little time, was still running Breitbart News. He’d not yet burned his bridges to Trumpworld with his comments in Michael Wolff’s book “Fire and Fury,” which was published in January. Since then, Bannon has lost considerable pull. He most recently made headlines after he was scheduled to speak at a conference on sex robots; a backlash to his invitation led to the conference being postponed.

In January,

McClatchy reported that the F.B.I. was investigating whether Russia funneled money through the National Rifle Association to aid the Trump campaign. Throughout the year, as evidence of sketchy connections between the N.R.A. and Russia kept emerging, many on the right poo-pooed it. (“This attempt to turn the N.R.A. into another cog in the Russian conspiracy is laughable, but the mainstream media apparently still find it deeply compelling,” wrote Breitbart editor Joel Pollak in March.)

On Thursday, Maria Butina, a Russian who’d nurtured ties to N.R.A. leadership and to Trumpworld, pleaded guilty to conspiring to act as a foreign agent. The plea described how, after arranging a junket to Moscow for a “Gun Rights Organization,” she wrote a message to her handler that was translated as, “We should allow them to express their gratitude now, we will put pressure on them quietly later.”

If Trump opponents had known a year ago that 2018 would bring so many revelations and comeuppances, we might have assumed that the Trump administration would be entering its terminal phase. But living under Trump has inured many of us to shock; momentous developments, like Cohen being sentenced to three years in prison, end up feeling anticlimactic, particularly with most Republicans refusing to act.

Still, when you consider the events of the last 12 months together, it becomes clear how relentlessly justice has ground forward, and how much Trump and his flunkies have lost. As I was writing this, news broke that federal prosecutors have started a criminal investigation into Trump’s inaugural committee, adding to inquiries into his business, foundation, campaign and presidency. America is still in a perilous place, and even a weakened Trump can torment migrants, pack the courts, wreck the environment and suck up to tyrants. Nevertheless, this is the first year since 2015, when Trump rode down that cursed escalator to launch his bid for office, that is ending more hopefully than it began.

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.

.. As for the strained legal argument, a number of Republicans are comforting themselves by sharing Bradley Smith’s essay in these pages that claims Michael Cohen “pled guilty to something that is not a crime.” Smith is undoubtedly an expert in the field, and his argument is clever, but it runs afoul of the relevant language of campaign-finance laws and available judicial precedent.

Smith claims that Trump’s payments represent a “personal” use of funds and thus cannot be considered a campaign contribution. As he notes, “personal use” spending is “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” (Emphasis added.)

Thus, even though you might spend more on a suit because you’re running for office, clothing is a category of expense that would exist in your life regardless of your run for office. Similarly, if you’re a businessman who is engaged in litigation (the example Smith uses), your legal obligation to respond to that litigation would exist regardless of your run for office.

Moreover, candidates are hardly left to their own devices in interpreting the law. Federal regulations helpfully define “personal use” and personal use can include “legal expenses.” There is no category for hush money. Its definition will depend on the facts.

As George Conway, Neal Katyal, and Trevor Potter point out today in the Washington Post, when former senator John Edwards was put on trial for similar crimes, he “repeatedly argued that the payments were not campaign contributions because they were not made exclusively to further his campaign.” The judge disagreed and “rejected this argument as a matter of law, ruling that a payment to a candidate’s extramarital sexual partner is a campaign contribution if ‘one of’ the reasons the payment is made is to influence the election.”

.. 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?”

.. To be clear, I happen to disagree with many elements of the campaign-finance regulatory regime. Its mandatory-disclosure provisions expose ordinary American citizens to reprisals for public participation. But when a candidate’s behavior runs against the plain language and clear intent of applicable law, he should not be shocked when he pays a legal price.