Former FEC Chief: Actually, Those ‘Hush Money’ Payoffs Were Not Campaign Finance Crimes

Let’s begin with an astonishingly weak political argument, albeit not a legal one, from Rudy Giuliani. Trump critics are dunking on the former New York City Mayor over his latest comment, but let’s face it: He basically posterized himself with this one — especially given the conspicuous “law and order” campaign rhetoric from his boss, and his own adherence to the “broken windows” theory of law enforcement that helped animate the city’s dramatic turnaround on his watch. That was then. This is now. Yikes:

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Part of the reason I believe this is because in order to successfully prosecute this sort of crime, the government would have to prove that Trump willfully and knowingly intended to break the law. (Some crimes, like Hillary’s Espionage Act violations, do not require proof of intent). Given his sordid dealings over many years, I cannot imagine Trump is a stranger to seedy deals and payments to keep certain things quiet. “Fix this and protect me” is almost certainly not a mindset that first emerged when Trump was a candidate for federal office; I suspect it’s been a way of life for quite some time. His motivations may have been selfish, and the acts he sought to cover up (and has lied about) do not speak well of his character. But it’s entirely plausible that Trump and his lousy lawyer did not realize that such par-for-the-course personal pay-offs became illegal once he was running for office. I realize that viewpoint isn’t exactly a snappy sound byte, but it’s still a hell of a lot better than, ‘no one died, so what’s the big deal?’ Which brings me to the next point: Is it actually true that the ‘hush money’ payments constituted crimes? Michael Cohen pleaded guilty, so it would seem so, right? Not so fast. Former Federal Elections Commission Chairman Bradley Smith makes a pretty compelling case that Cohen copped to acts that were never criminal acts:

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.

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