Former FEC Chair: Trump Hush Money Unseemly, But Not Illegal

Posted: Aug 25, 2018 9:15 AM
Former FEC Chair: Trump Hush Money Unseemly, But Not Illegal

So, about all this hush money? Does anyone, excluding snobby Acela Corridor elites, really care about it? The claim is that these payments to allege mistresses to President Trump—affairs that allegedly occurred way before he was even thinking about running for president, were campaign finance violations. The plea deal by Trump’s former lawyer Michael Cohen kicked the impeachment talk into high gear this week. It’s not going anywhere. Well, for starters, you have former top Federal Election Commission officials saying the payments were “unseemly,” but not illegal. The law is murky on this subject—and just because Stormy Daniels’ lawyer, Michael Avenatti, says it’s a violation doesn’t make it so. The porn star lawyer has been going on a tear, alleging this, that, and the other against the Trump administration for months. Nothing substantive has materialized. Wait—didn’t Cohen admit that these payments were directedby Trump? Maybe—but again—so what?

Former chair of the FEC, Bradley Smith, has more (via WaPo):

…[R]egardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages and Brooks Brothers suits — seems more like bribery than funding campaign speech.

That’s why another part of the statute defines “personal use” as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even though the candidate might benefit from the expenditure. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate.

Suppose, for example, that Trump had told his lawyers, “Look, these complaints about Trump University have no merit, but they embarrass me as a candidate. Get them settled.” Are the settlements thus “campaign expenses”? The obvious answer is no, even though the payments were intended to benefit Trump as a candidate.

If the opposite were true and they were considered campaign expenses, then not only could Trump pay them with campaign funds, but also he would be required to pay these business expenses from campaign funds. Is that what campaign donations are for?


Yes, those payments were unseemly, but unseemliness doesn’t make something illegal. At the very least, the law is murky about whether paying hush money to a mistress is a “campaign expense” or a personal expense.

Mr. Smith ends with some very wise words: “Laws, once stretched from their limited language and proper purpose, are difficult to pound back into shape. We should proceed with caution here.”

Noted Democrat and liberal Alan Dershowitz, who has become one of the president’s most vocal defenders on legal issues, says this campaign finance law violation business is total nonsense as well. Dershowitz has become something of a pariah with fellow Democrats. He says his legal defenses of the president has led to disinvitations to dinner parties, with colleagues saying quietly they agree with him, but that he should “shut the f**k up” because it’s Trump. Yet, he does this not because he likes Trump, he’s an avowed liberal Democrat, but he’s not going to stand for his side stretching the law to absurd length to try and get him impeached. He told MSNBC’s Hallie Jackson that Trump committed no crime with the payments to these alleged mistresses. Real Clear Politics provided the clip and transcript:


MSNBC HOST: Can I ask about a couple things, Alan? .. You said last night, 'All Cohen has to do is say the president directed me to do it. That's the kind of embellishment people put on a story when they want to avoid dying in prison.' Are you suggesting Cohen lied under oath? 

ALAN DERSHOWITZ: Well, we don't know. All we know is what Judge Ellis said.

Judge Ellis said is when you put pressure on somebody like Cohen, there is an incentive to embellish the story and make it better because he's now facing 4 years. So if he comes up with strong evidence against the president that will be reduced to 2 years, 3 years, or 1 year. ...

I have no idea whether Cohen is telling the truth or not, but the interesting thing is, if Cohen is telling the truth it's a catch-22 for the prosecution. Let me lay this out for 60 seconds...

Here's the issue: The president is entitled to pay hush money to anyone he wants during a campaign. There are no restrictions on what a candidate can contribute to his own campaign. So if, in fact, the president directed Cohen to do it as his lawyer and was going to compensate him for it, the president committed no crime. if Cohen did it on his own --

MSNBC HOST: That seems awfully convoluted, Alan.

DERSHOWITZ: -- then Cohen commits the crime.

It's convoluted. The law is convoluted.

MSNBC HOST: Prosecutors have said Michael Cohen broke the law and Michael Cohen says, the president told me to do it. You said last night, as well that you every president breaks the law during an election. Really? Does that make it okay?

DERSHOWITZ: No. I said -- 

MSNBC HOST: Your quote is every candidate violates election laws when they run for president.

DERSHOWITZ: Let me tell you what I said.

MSNBC HOST: I just told you.

DERSHOWITZ: Candidates violate election laws all the time, go back to any campaign's campaign violations.

MSNBC HOST: But does that make it okay?

DERSHOWITZ: No, it doesn't, but let be very clear.

MSNBC HOST: Isn't that moving the goalposts?

DERSHOWITZ: You're not letting me make my point.

MSNBC HOST: All yours.

DERSHOWITZ: The president doesn't break the law if, as a candidate, he contributes to his own campaign. So if he gave $1 million to two women as hush money, there would be in crime. If he directed his lawyer to do it, and he would compensate the lawyer, he's committed no crime. 

The only crime is if a third-party, namely, Cohen, on his own, contributed to a campaign, that would be a campaign contribution. So it is a catch-22 for the prosecution. iI they claim that the president authorized him to do it or directed him to do it, it is not a crime for anybody. If Cohen did it on his own, then it is a crime for Cohen but not the president. 

This is going to be a very difficult case for the prosecution to make, precisely because the laws on election are so convoluted.

On Fox News, Dershowitz took shots at Avenatti saying his Stormy Daniels case is a nothing burger, and none of his predictions ever come true. He also warned fellow Democrats from making this a major campaign issue, as it blew up in the faces of Republicans during the Clinton presidency:

"The Democrats are going to run on 'Give us the House and we'll impeach the president.' That's what happened when President Clinton was impeached, and it ended up being a disaster for the Republicans because the Senate refused to remove him," he added. "I think impeachment will be an issue, but... at least according to my research... the president has not up to now committed any impeachable offenses."

About Michael Avenatti, the attorney for porn star Stormy Daniels who is leading the charge to prosecute Michael Cohen and depose President Trump (who host Brian Kilmeade intelligently refers to as the "antithesis" of Dershowitz), he said: "It will never happen."

"Almost all of Avenatti's predictions have not come true," Dershowitz said. "He has also said the president would resign."

"The case of Stormy Daniels is a nothing case, I don't even know why it is still in court... It seems to be in court because Avenatti wants it to be in court, I don't see how it benefits Stormy Daniels. It is not a case that is going anywhere.