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

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Posted: Dec 14, 2018 2:01 PM
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:


Say, does the occasional violation of federal law really matter all that much if nobody's been murdered?  This is...not a good way to frame any of this, even if you're rooting for the guy and his client.  As I've written previously, I'm not convinced that campaign finance infractions or crimes surrounding hush money pay-offs to women would stand alone as impeachable acts.  They're tawdry and sleazy, but do they warrant removal from office?  I don't think so, even though it's true that Trump has apparently lied through his teeth about the whole imbroglio.  We've recently learned that not only was the payment to keep one of the women silent (funneled through the National Enquirer's parent company) made for the primary purpose of influencing the election, we've also discovered that Trump himself was reportedly in the room when the scheme was hatched.  Understand that none of this looks remotely good for the president.  I'm just not sure this particular prong of the sprawling festival of investigations, indictments, and plea deals seriously imperils his presidency.  

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.

In fact, Smith continues, to charge personal expenses as political expenses would be a crime. Here's a more applicable illustration he offers:

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.

He goes on (following up on a similar August analysis), explaining that "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."  This is clearly true of the payments to Stormy Daniels and another woman, just as it's also true that Trump had other strong incentives to prevent either woman's story from going public -- like keeping such information away from his wife and children, for instance.  Smith concludes:

Renting campaign office space, printing bumper stickers and yard signs, hiring campaign staff, paying for polling, and buying broadcast ads are all obligations that exist for the purpose of influencing an election. Paying hush money to silence allegations of decade-old affairs is not. 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...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.

Again, I'm not arguing that trumpeting this well-informed opinion amounts to moral vindication in any way, but it does underscore how skeptical people ought to be of the notion that Trump could face impeachment over this issue, based on what we currently know. And I have no idea if the president is out of the woods on other matters.