President Trump is understandably “trump-eting" a story in The Daily Signal by former Federal Election Commissioner Hans von Spakovsky. It’s headlined “Trump’s Ex-Lawyer Didn’t Violate Campaign Finance Laws, and Neither Did the President” and makes the case that Trump is in the clear, saying that “the Cohen guilty pleas are likely irrelevant to the fate of President Trump.”
Here’s the Readers Digest version of why the payments weren’t violations: “FECA (the Federal Election Campaign Act) specifically says that campaign-related expenses do not include any expenditures ‘used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign...Given Trump’s celebrity status, the potential liability to these women existed ‘irrespective of the candidate’s election campaign’...Just as important...How can Cohen or anyone else involved in these payments be charged with a ‘knowing and willful’ violation of the law by facilitating these payments when numerous campaign finance lawyers, federal election commissioners, and the Federal Election Commission itself have all publicly opined that such payments do not violate the law in the first place? It seems pretty clear that the Federal Election Campaign Act wasn’t meant to cover what Cohen pleaded guilty to, which is why the [John] Edwards prosecution failed.”
If you’d like to get into the weeds on this, I recommend the original article in the Daily Signal. Von Spakovsky echoes what FOX legal analyst Gregg Jarrett has been saying all along: that Cohen was induced to plead guilty to non-crimes. The assumption in Cohen’s case that these were crimes is not in any way binding on President Trump. In von Spakovsky’s words, even if Trump told Cohen to make the payments, “it would be impossible for Trump to have violated campaign finance law by directing Cohen to take a perfectly legal action.”
On the other hand, Judge Andrew Napolitano, offering his opinion on FOX News with Bret Beier, said it still appears campaign laws were willfully broken, noting that the “sophisticated, deceptive subterfuge” employed by Cohen to hide what he was doing shows that he didn’t just make an honest mistake. Napolitano said the judge in the case seems to think the payments were made by Cohen to help the campaign and were not reported. Now, I’m not a lawyer, but what Napolitano said doesn’t necessarily mean that Trump was thinking of the payments that way. Even if Cohen says he was, I would think that Cohen, after being induced by prosecutors to implicate Trump to save his own skin, and after having been revealed as thoroughly unethical and dishonest, is not by any stretch of the imagination a trustworthy witness. (Not sure what’s going on with Napolitano these days, but whatever it is has made him a weirdly welcome afternoon guest for Shepard Smith.)
Since making payments as part of non-disclosure agreements is not criminal (even if it happens to be taking place during a campaign), it seems to me that if Cohen was trying to hide the nature of these payments from the FEC, he was simply acting by reflex but doing something unnecessary. It seems likely that, at least regarding these payments, the one thing Cohen is really guilty of is “acting guilty.”
I would add one other thing that absolutely puts the final nail in the coffin of Cohen’s trustworthiness as a witness: He’s now facing a three-year sentence, with the understanding that IF HE CONTINUES TO COOPERATE, that sentence may be reduced. So prosecutors are not through with Cohen. Once he actually reports to prison in March and finds out what it’s like in there, it will be very much in his own interest now to “sing” --- or to “compose.” In fact, he recently said that he’s going to tell “everything he knows” about Trump. (He showed long ago that he had no ethics when it came to attorney-client privilege.) What could be more convenient for witch-hunters?
Eli Lake of Bloomberg Opinion, who, like me, admits that he is not a lawyer, pointed out that this process is primarily a political one, and that “this is not going to be something that you can impeach him for.” This is not collusion with Russia, and the political case can only be made with “hard-core partisans.” Agreed, but that doesn’t mean the hard-core partisans won’t do whatever they have to do to make it happen. Democrats can impeach him for anything they want; it will be the political equivalent of a frivolous lawsuit. And when the Senate gets it, they can essentially treat it just like one of those.
Tom Bevan, political analyst and executive editor of Real Clear Politics, called the campaign finance kerfluffle the same thing I do: “a pretext for impeachment.” Anything will do. This is just going to be “an exercise in poltics,” he said, because the Senate, without a reason for “mass defections,” will not vote to convict. Gosh, he sounds like me.
Napolitano observed that it’s the New York prosecutors who seem especially aggressive towards Trump. It’s hardly surprising that they are. Trump’s from New York himself and has a long history of doing business there. In fact, on Wednesday, Letitia James, the new attorney general for New York State stood on the courthouse steps and proclaimed to eager reporters that her office plans to launch “sweeping investigations” into President Trump, his family and “anyone” in his circle who may have violated the law. “We will use every area of the law to investigate President Trump and his business transactions, and those of his family as well." To do this, she says she’s enlisting the help of prosecutorial heavy-hitters like...Loretta Lynch.
Can you say “witch hunt”? Trump may be prone to exaggeration, but in this case he isn’t exaggerating at all.