On Wednesday, a district court judge in Manhattan accepted Michael Cohen’s guilty plea to political crimes and sentenced him to three years in the American gulag. But if the two campaign finance crimes to which he pleaded guilty are not really crimes, why did he plead guilty to them? And what precedents does this case establish that can be used against political enemies in the future?
On Monday, the president tweeted that the Democrats are shifting their focus from Russian collusion “to a simple private transaction, wrongly call[ing] it a campaign contribution.”
Then, on Thursday morning, Trump refined his messages: “Cohen was guilty on many charges unrelated to me, but he plead [sic] to two campaign charges which were not criminal[.]”
As usual, either Trump is right or he’s crazy. Did Cohen plead guilty to a non-crime? The liberal media and law professors automatically assume anyone who would work with Trump is guilty, even referring to the president as an “unindicted coconspirator.” But their conclusions are based more on wishful thinking than on critical analysis of federal election law.
Cohen, as President Donald Trump’s former personal lawyer, has pleaded guilty to two campaign finance violations, claiming he did so at the direction of Donald Trump. Assuming that the facts of what Cohen has admitted to are true, do they actually constitute a violation of federal campaign finance law? Professor Laurence Tribe thinks so, having sacrificed his critical thinking when he tweeted:
WOW: The Dec 7 filing in SDNY on Michael Cohen’s sentencing charges that President Trump (aka “Individual 1”) directed a criminal conspiracy with his attorney Cohen to violate the federal election laws in order to increase his odds of winning the presidency by deceiving voters.
Some Trump-supporters argue that Trump did not know that the action he supposedly directed Cohen to take was a federal crime, therefore he himself cannot be convicted because he did not possess the requisite mental state for a campaign finance crime – “knowingly and willfully.” But few have shown the desire or spent the time to take a critical, objective look at federal election law to see how it applies to Cohen’s actions.
The campaign finance violations to which Cohen pleaded guilty relate to two payments from Cohen to a tabloid to suppress two news stories about allegations of infidelity by Donald Trump. For one payment Cohen made, he was reimbursed by the Trump Organization, and that is the basis for the allegation of an illegal corporate contribution. Cohen was not reimbursed for the other payment, and that is the basis for the allegation of an excessive personal campaign contribution.
Both of these illegal contributions charges depend on the Federal Election Campaign Act’s technical definition of a “contribution.” The U.S. Attorney’s Office never explained how expenditures made to suppress news stories meet the definition of a “contribution.” It was just assumed.
The FECA defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person FOR THE PURPOSE OF INFLUENCING any election for Federal office” (52 USC §30101[8][A][i]). Similarly, an “expenditure” is “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person FOR THE PURPOSE OF INFLUENCING any election for Federal office” (52 USC §30101[9][A][i]). Obviously, the money used to make the two payments meet the first half of these definitions. And if an “expenditure” is made at the direction of a candidate, then it is treated as a “contribution.”
The trickier question is whether the payments were made “for the purposes of influencing” the presidential election. The publication of the stories of the type that Cohen paid to suppress might have an influence on the election. But the payment was for not publishing the stories.
It is generally understood that the campaign finance laws were designed to regulate money being spent to affect federal elections – including ads and organizing designed to encourage voter support for a certain election. It has not been generally understood to apply to money that is spent not to influence public communication. Indeed, not publishing a story cannot logically be “for the purpose of influencing” an election. Instead, it does not influence an election. (It’s sort of like a “Schrödinger’s campaign expenditure” – both influencing and not influencing an election at the same time.)
The irony in this case is that if the stories that Cohen paid for had been published – i.e., had actually influenced the election – there would have been no required reporting to the FEC before the election. The media exemption protects such publication from the purview of federal campaign finance law. Only not publishing it, according to the government’s theory, converts the payment into a campaign contribution. The U.S. Attorney’s Office announced that it had reached a non-prosecution agreement with the National Enquirer, so every media outlet – including Jeff Bezos’s Washington Post – is now on notice that choosing not to publish information that could influence an election should be considered a campaign contribution, unprotected by the media exemption.
Cohen was never charged with making an actual “contribution,” as defined by law. Instead, as to the first payment, he was charged with making it for the “principal purpose … to suppress Woman-1’s story so as to prevent it from influencing the election” (Cohen Information, para. 30).
With respect to Woman-2, the charging document says the opposite: “Cohen … caused and made payments … in order to influence the 2016 presidential election” (para. 35). The reasoning is the same. The payment to suppress the story about Woman-2 was made to prevent it from influencing the election.
When the FECA was enacted, the Supreme Court had to grapple with the limits that the First Amendment imposes on the FECA, including on the definition of “expenditure.” In Buckley v. Valeo, the Supreme Court determined that there had to be some limits placed on what could be considered “for the purposes of influencing” an election and thus determined it could be applied only to electoral statements that urged voters to expressly advocate for or against a candidate. If statements did not have those words of express advocacy – clear statements of support or opposition to named candidates – then they cannot be considered expenditures. Not publishing a story has no content – it cannot contain express advocacy – and thus cannot be an expenditure subject to the FECA.
Furthermore, no federal court has ruled that not influencing an election constitutes influencing an election. The federal government tried that theory once before, when Senator John Edwards had help supporting his mistress to keep his affair quiet and prevent it from hurting his political aspirations. He was charged with four campaign finance violations but was acquitted on one charge, and the other charges were later dropped. Thus, this creative legal theory by the prosecutors has never previously been successfully used against anyone during FECA’s 45-plus years in existence.
Finally, there is also a question about whether the so-called contributions to which Cohen pleaded guilty could have been paid for by the Trump Campaign. Election law expert Mark Fitzgibbons explains that hush payments are not legitimate campaign expenditures and would have been prohibited as “personal use” – a prohibited use of campaign funds. (See “Fitzgibbons: Trump’s Alleged Payment to Stormy Daniels Was Perfectly Legal.”) Former FEC Chairman Brad Smith agrees.
Assuming that Cohen’s attorneys are not unaware of these facts, why would they allow Cohen to plead? Cohen probably took the plea bargain because he was threatened with a long prison sentence and financial impoverishment on the many financial and tax charges unrelated to any dealings with President Trump. On Wednesday, Cohen was sentenced to three years, which was a pittance compared to the likely threatened decades of imprisonment.
Even after he leaves office, prosecutors would never charge Trump, because then they would be forced to defend their bizarre interpretation of federal campaign finance law. It would likely be reviewed by the Supreme Court, which tends to interpret the criminal portions of election law more strictly than its civil provisions. But for now, the TV commentators who would not know the FEC from the FCC will continue to push the narrative that Trump is an “unindicted co-conspirator,” so the charge would hang over Trump’s head like a dark cloud. Federal courts are barred from accepting pleas to non-crimes. This plea should have been rejected, but it wasn’t, which is unfortunate for everyone – except the NeverTrumps.
Jeremiah Morgan practices constitutional law and election, defending against government excess, at William J. Olson, P.C., Vienna, Virginia. E-mail [email protected], visit www.lawandfreedom.com, or follow www.Twitter.com/JeremiahMorgan.
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