Jurisprudence

Trump’s “Obama Did It Too” Legal Defense Does Not Hold an Ounce of Water

Michael Cohen and Donald Trump.
Michael Cohen and Donald Trump
Photo illustration by Slate. Photos by Mark Wilson/Getty Images; Jim Watson/AFP/Getty Images.

President Donald Trump may never face a criminal penalty or impeachment proceedings for violating campaign finance laws in alleged conspiracy with his former personal lawyer, Michael Cohen. But on Monday, he tweeted an apparent legal defense for the apparent criminal violations that is beyond unconvincing. He argued that hidden hush-money payments to his mistresses in the weeks before the 2016 election were merely “simple private transaction[s]” rather than illegal campaign contributions, or that his problems amount to no more than his lawyer making a paperwork mistake. The president went on to compare Cohen’s actions to the reporting errors to which the Obama campaign admitted and ultimately dealt with through the payment of civil fines, the apparent point being that even if Trump did anything wrong, he should only be on the hook for civil penalties. In reality, Trump’s conduct and applicable campaign finance rules suggest that he would already be in serious legal jeopardy if he were not the sitting president.

Here’s what we know about the circumstances surrounding Cohen’s sentencing memo, which was submitted last week by federal prosecutors in the Southern District of New York. Cohen pleaded guilty to arranging payoffs to two women, Karen McDougal and Stormy Daniels, in exchange for their silence about affairs with Trump “in coordination with and at the direction” of the then-candidate. In the McDougal case, Cohen arranged for the National Enquirer to “catch and kill” the story by paying for the exclusive rights to McDougal’s story and then never running it. Cohen promised an Enquirer editor reimbursement. In the case of Daniels, Cohen avoided making the payment until Daniels’ lawyer revealed she was going to tell her story publicly to a media outlet. On Oct. 25, 2016, days before the election, Cohen paid Daniels for her silence. He facilitated the payment by tapping a home loan and setting up a limited liability corporation to make the payment. He was then reimbursed by the Trump Organization after submitting false invoices indicating the payments were for lawyer fees and tech services.

As I explained in Slate back in August when Cohen’s actions first came to light, it looks like Cohen and Trump conspired to violate a number of campaign finance laws involving excessive individual contributions (an individual cannot give more than $2,700 to Trump’s campaign), illegal corporate contributions (the Trump Organization and National Enquirer are corporations, as was the LLC Cohen set up to make the Daniels payment), and violating a number of reporting requirements, including the campaign’s failure to report Cohen’s personal loan to the campaign.

These were not “paperwork” errors, as both Trump and Rand Paul have spuriously claimed. Campaigns do make paperwork errors all the time, especially large campaigns like Obama’s or John McCain’s, which failed to file some reports within 48 hours of making some campaign expenditures. When campaigns make these minor errors, they promptly file a corrected report with the Federal Election Commission and then pay civil fines if necessary. What they don’t do: Deny for more than a year that they made an error, and try to hide campaign payments by funneling money through unreported corporate loans, LLCs, and payoffs falsely described as legal and technical services. These are serious criminal activities for which others have gone to jail, and for which Cohen apparently will spend time behind bars following his guilty plea. Indeed, in recommending a harsh sentence for Cohen last week, SDNY prosecutors emphasized the seriousness of the former fixer’s actions and the particular relevance of campaign finance statutes.

Cohen’s commission of two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with [Trump]. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

The above logic would obviously also apply to Trump if it could be proven that he directed these crimes, as Cohen and the state have alleged. Indeed, Politico reported on Monday that Florida Rep.-elect Ross Spano could face criminal liability for failing to disclose $180,000 in loans from friends. These are all potentially serious crimes.

Trump is on only slightly stronger ground in claiming that these were simple private transactions, not campaign-related ones. It is true that a campaign need not report a candidate’s purely personal expenses. So how to draw the line? As I explained in an August column, the question is whether making the payments was motivated by a desire to help the campaign rather than to protect his personal life:

Two important Republican election lawyers have attempted to set a high bar for how to tell when a payment in this context might be campaign-related rather than personal. Charlie Spies told the [Wall Street] Journal in February that the payment to Daniels was “an expense that would exist irrespective of whether Mr. Trump was a candidate and therefore should not be treated as a campaign contribution.” And former Federal Election Commission chair Brad Smith wrote in an April op-ed in the Journal that “FEC regulations explain that the campaign cannot pay expenses that would exist ‘irrespective’ of the campaign, even if it might help win election. At the same time, obligations that would not exist ‘but for’ the campaign must be paid from campaign funds.”

Even under these tough standards for what counts as campaign-related, the proof of the timing would be damning for Cohen. Why should Cohen not care a whit about protecting Trump’s reputation in his wife’s eyes in September 2016, but be anxious to close the deal—and shut Daniels up—right as the campaign faced a crisis involving allegations of Trump’s treatment of women? The Daniels payment was not an expense that existed until the campaign needed it. But for the campaign, it seems that Cohen would not have paid.

Cohen’s guilty plea alone does not demonstrate that Donald Trump committed a felony. To be criminally liable, it must be proven that he willfully violated campaign finance laws. The timing so close to the election, the structuring of the secret payments, the use of a sham LLC all suggest evidence of guilt. We don’t know what evidence federal prosecutors have of Trump’s direction and coordination of this activity, but that evidence would likely add to the case of Trump’s guilt.

Ultimately it seems to be a political question whether prosecutors might indict Trump after he leaves office or if Democrats might use these campaign finance violations as grounds for impeachment. The political reality is that he may never face a penalty. But it likely won’t be because prosecutors could not make their case. From what we can see, Trump looks plenty guilty.