Ever since the news broke that Michael Cohen pleaded guilty to finance laws and swore that candidate Donald Trump directed him to do so, I have been reviewing the morass of rules and laws that govern campaign finance. I have been teaching and practicing criminal law for more than a half century, and yet, I have to acknowledge that I am having difficulty understanding the laws as they relate to the allegations made by Cohen against President TrumpDonald John TrumpTrump praised White House defender who was fired for sexual harassment: report Cohen’s father said he didn’t survive Holocaust to have his name ‘sullied’ by Trump: report NYT: Trump after Cohen plea mused, ‘How did we end up here?’ MORE.
A few things are clear. A candidate is free to contribute to his or her own campaign. It also is not criminal for a candidate to pay hush money to women whose disclosures might endanger his campaign. So if candidate Trump paid hush money to his two accusers, there would be no violation of any campaign or other laws. To be sure, if he did so for the purpose of helping his campaign — as distinguished from helping his marriage — his campaign would have to disclose any such contribution, and failure to do so might be a violation of a campaign law, but the payments themselves would be entirely lawful.
If, on the other hand, Michael Cohen made the payments by himself, without direction from the president, that would constitute an impermissible campaign contribution from a third party. But if Cohen was merely acting as Trump’s lawyer and advancing Trump’s payments, with an expectation of repayment, then it would be hard to find a campaign finance crime other than failure to report by the campaign.
Failure to report all campaign contributions is fairly common in political campaigns. Moreover, the offense is committed not by the candidate but, rather, by the campaign and is generally subject to a fine. Though it is wrong, it certainly is not the kind of high crime and misdemeanor that could serve as the basis for a constitutionally authorized impeachment and removal of a duly elected president.
Moreover, prosecutors should be reluctant to rely on the uncorroborated word of a guilty defendant who pleaded guilty to lying and defrauding. Thomas Jefferson once observed that a criminal statute, to be fairly enforceable, must be so clear that it can be understood by the average person who reads it “while running.” Jefferson did not mean while running for office; he meant that a criminal statute should not be subject to varying reasonable interpretations.
Anyone reading the collection of statutes, regulations and rules that govern elections would immediately conclude — even while sitting — that they do not satisfy this Jeffersonian criteria. Reasonable people can disagree about whether these open-ended laws apply to any of the acts and omissions alleged against Trump by Cohen.
An overzealous prosecutor could, of course, stretch the words of the accordion-like statute to target a political enemy, or read it more narrowly to favor a political friend. If the same morass of laws were being applied to a President Hillary ClintonHillary Diane Rodham ClintonCohen’s lawyer on Trump Tower meeting: Cohen was ‘present at a discussion with’ Trump and Trump Jr. Lawyer: Cohen witnessed Trump’s ‘awareness’ of hacked Dem emails before they were released Election Countdown: Trump plans ambitious travel schedule for midterms | Republicans blast strategy for keeping House | Poll shows Menendez race tightening | Cook Report shifts Duncan Hunter’s seat after indictment MORE, civil libertarians would be up in arms about their ambiguity and lack of clarity.
As a civil libertarian who voted and campaigned for, and contributed to, Hillary Clinton, I am critical as well of efforts to stretch these laws so as to target a president against whom I voted. The guilty plea of Michael Cohen, coupled with the conviction of Paul ManafortPaul John ManafortNYT: Trump after Cohen plea mused, ‘How did we end up here?’ Manafort juror: One ‘holdout’ prevented jury from convicting Manafort on all 18 counts Hatch after Cohen plea deal: ‘I think Trump is a much better person today than he was then’ MORE, do not make President Trump look good politically. He promised the American people to surround himself with the best advisers but he surrounded himself with too many people who broke the law, even if he himself was not legally complicit. But the rule of law demands that we distinguish between political sins and federal felonies. As the record now stands, Donald Trump appears to be guilty of political sins, but not federal felonies or impeachable offenses.
You wouldn’t know that if you just watched those cable-television stations that are determined to find crimes and impeachable offenses against President Trump without regard to the law, the facts or consideration of civil liberties. If one applies a single standard without regard to politics, what I call “the shoe on the other foot test,” there are still large gaps between Michael Cohen’s plea of guilty, on the one hand, and crimes or impeachable offenses against Donald Trump on the other. Until and unless those gaps are filled with credible evidence of criminal behavior by the president, his enemies should be cautious about tolling the death knell for this presidency.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.
Published at Wed, 22 Aug 2018 18:45:07 +0000