Special Counsel Robert Mueller’s office, working closely with federal prosecutors in New York City, have used President Donald Trump’s former lawyer, Michael Cohen, to draw presidential blood.
They’ve directly implicated Trump in their criminal case against Cohen for violating federal election law. Former FBI Director James Comey said Trump is now “certainly close” to being an unindicted co-conspirator.
But did either Cohen or Trump really violate federal election law?
In the fall of 2016, as the presidential election contest was barreling toward its conclusion, Trump instructed Cohen to take care of claims that had been raised by Karen McDougal and Stormy Daniels; these women had been shopping around stories to the tabloids about alleged affairs they had had with Trump.
If Trump wouldn’t pay, they would speak.
Cohen set up two companies through which he would purchase the rights to a non-disclosure agreement McDougal had signed with the National Inquirer and pay Daniels in exchange for signing her own. Cohen made the payment to Daniels and was later reimbursed by the Trump Organization. The McDougal matter fell apart when the National Inquirer informed him the deal was off.
Months later, prosecutors discovered evidence of these agreements, including recordings Cohen had made of telephone conversations with then candidate Trump; prosecutors brought election law charges against Cohen claiming these payments were unlawful campaign expenses because the amounts exceeded the lawful limit and were made from corporations which are prohibited.
The Indictment states, “[Cohen] caused and made the payments in order to influence the 2016 presidential election.” And, the prosecutors had Cohen say under oath the payments were made “in coordination with and at the direction of a candidate for federal office,” [aka Trump] and, “I participated in this conduct … for the principal purpose of influencing the election.” Those words – principal purpose – are the magic words by which the government has transformed these otherwise lawful payments into a crime.
But are the words true?
If Cohen had used this money to purchase a “Trump for President” yard sign that would clearly be for the principal purpose of influencing an election. But Cohen used the money to obtain non-disclosure agreements. And, the non-disclosure agreements were about things that occurred years before Trump was a candidate and had nothing to do with his campaign or the election.
The leading case, ironically, comes from the 2nd Circuit U.S. Court of Appeals, which covers the jurisdiction in which Cohen is being prosecuted.
In this case, the court examined an ad placed in the New York Times in May of that election year, which called for the impeachment of President Richard Nixon, listed those congressmen who had voted for impeachment and stated it would “devote its resources in funds and publicity in aid of any new candidate for election … or re-election…” who supports impeachment. The ad even included coupons that could be used to make donations.
The government argued the purpose of the ad was to influence the election. The court, however, ruled, “…the advertisement seeks support of an impeachment resolution, not the election of political candidates. As such, the purpose of the advertisement…was at most only incidentally to support candidates and engage in “political activity…” The court reached that conclusion by reading the ad; it was mostly about impeachment. In the Cohen case, the non-disclosure agreements are about purchasing silence; they say nothing about the election.
The Justice Department has already been down this road before. The Obama DOJ brought a criminal case against former presidential candidate John Edwards. It claimed he orchestrated payments from two of his maxed-out campaign donors, to be used to hide his then pregnant mistress at a critical stage in his campaign. Prosecutors argued those payments were campaign expenditures because they were made for the principal purpose of influencing the election. They lost.
The Justice Department has argued that same position in the Cohen case. However, unlike Edwards, Cohen has pled to it and the Judge has accepted that plea.
But think about its implications. According to the DOJ candidates for federal office must – otherwise they could be charged criminally – use campaign funds to purchase the silence of their mistresses or hide them from media scrutiny. What about those candidates who accept matching taxpayer funds? Do you want Trump using your taxpayer dollars to pay off the next woman who alleges she had an affair with him?
We now have the legal absurdity of Cohen being sentenced on two non-crimes and the legal and political absurdity of the president possibly being charged with criminal conspiracy to commit the same two non-crimes and being subject to impeachment for “high crimes and misdemeanors.”
PennLive Opinion Marc Scaringi, of Camp Hill, is an attorney and radio host. His work appears biweekly.