The presidency of Donald Trump has elicited frequent cries from civil libertarians, fearing his perceived authoritarian tendencies. It is therefore sadly ironic that many of those voices are silent—nay, applauding—in the face of what can only be described as a cynical ploy by interim U.S. Attorney Geoffrey Berman to politicize his office and promote the ouster of a legitimately elected American president.
The epicenter of this sad caper is Michael Cohen, the president’s former attorney. The U.S. Attorney for the Southern District of New York accused Cohen of committing $20 million in bank and tax fraud, which if proven would send him to prison for a very long time. Cohen therefore agreed to plea guilty to these crimes, along with paying money on behalf of the Trump organization and at the behest of Trump himself in 2016 to cover up two of Trump’s extramarital affairs for the benefit of his presidential campaign. This, according to the plea agreement, meant that Cohen made an illegal in-kind contribution in excess of the $2,700.00 legal limit. Trump is allowed to donate as much money as he wants to his own campaign and there is nothing illegal about paying off a mistress, but the plea agreement further states that Trump criminally induced Cohen’s unlawful behavior and failed to disclose the contribution.
This theory is complete and total drivel.
First, the burden of proving a criminal violation of federal campaign finance law is extraordinarily high. Prosecutors must prove beyond a reasonable doubt that the alleged violation was “knowing and willful.” This case would require proof beyond a reasonable doubt that Trump knew the contribution would violate campaign finance law. This law presents the unique scenario where ignorance of the law actually is a defense. This would be difficult to prove against any defendant, let alone someone routinely denounced by his critics as a total imbecile.
Second, it is far from clear that this “hush-money” is truly an in-kind contribution. These contributions include “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” But is giving hush-money to former mistresses really a campaign expenditure—and do we really want it to be? This would mean candidates are allowed to use campaign money to pay off their mistresses. I doubt this is how donors want their money to be spent.
Furthermore, the law carves out specific exemptions for “personal use” where money is spent “to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” This is because we do not want campaign money being spent on personal items. Examples cited by the statute include household expenses like rent, food, and clothes; vacations; cars; and other personal expenses. Should money spent to maintain the secrecy of extramarital affairs—particularly from the adulterer’s wife and children—be considered a personal expenditure? An Associated Press story claiming Trump had a long track record of paying the National Enquirer to conceal embarrassing stories about him suggests he viewed it as such.
Moreover, if this constitutes a legitimate campaign expenditure, then why not clothing and cosmetic surgery? Surely an updated appearance could conceivably help improve electability. For that matter, why not massages, aromatherapy, and spa retreats? Would such comfort mechanisms not help a candidate achieve optimal performance? And, of course, Netflix and Kindle fees should be paid by donors since busy candidates need to unwind at the end of one day to get ready to campaign the next. Categorizing such personal expenses as campaign expenses therefore takes us down an unsavory wormhole.
Critics may point to the case of John Edwards, who in 2011 was indicted for soliciting $1 million in hush-money from his donors. However, that case is easily distinguishable by the fact that Edwards asked two of his campaign donors to pay the bill, thereby creating a presumption that it was an undisclosed campaign expenditure. Furthermore, Edwards was acquitted on one count and the jury was hung on the remainder. There is also no indication that Edwards had the same pre-campaign pattern of paying off mistresses as Trump. On its face, the case against Trump is much weaker than the unsuccessful one against Edwards.
These reasons make it far from clear that the conduct alleged against Trump is illegal. Former FEC Commissioner Bradley Smith and decorated defense attorney Alan Dershowitz are highly skeptical that it is. The best that can be said is this is a very murky, unestablished gray area of law. And that brings us back to the issue posed by the “knowing and willful” standard—if it is highly uncertain whether the Trump’s alleged conduct violated federal election law, then how could prosecutors possibly prove beyond a reasonable doubt that he knowingly and intentionally violated it? How can his critics who routinely claim that he is a total ignoramus now claim his masterful understanding of campaign finance gave him the mens rea for a conviction? They cannot have it both ways.
This is a virtually impossible case to prove. It is an abuse of prosecutorial power, plain and simple. Mr. Berman is undoubtedly building a public profile by taking down a sitting president for purely political reasons. He and Michael Avenatti seem to have quite a bit in common.
Ryan T. Darby practices defamation defense and free speech law in San Diego.