Dan Backer In light of Michael Cohen’s plea deal, Democrats and the liberal news media are out for blood. Rep. Elijah Cummings, D-Md., called for a congressional hearing to “obtain sworn testimony directly from Mr. Cohen.” Time magazine proclaimed: “Trump is in trouble. Here’s how much worse it can get.” Except he’s not, and it won’t get “worse.” Actual campaign-finance experts, outside the liberal outrage mob, generally agree: Even if Cohen’s activities are campaign-related — though they probably aren’t — they amount to a Federal Election Commission speeding ticket. President Donald Trump didn’t violate campaign-finance law; the payments made to Stormy Daniels and Karen McDougal came from his personal finances, not campaign funds, for something he believed was unrelated to the campaign. As the president told Fox News, “They didn’t come out of the campaign; they came from me.” At the very worst, even if re-characterized to be campaign-related, the “violation” amounts to underreporting relatively insignificant contributions from a candidate to his own campaign. OUR VIEW:Hey Paul Ryan and Mitch McConnell, come get your spines But the liberal mob never misses an opportunity to undermine the Trump presidency, lobbying for an endless investigation into President Trump. All this after the Mueller investigation has already cost roughly $20 million — and no Russian collusion found. Why should Congress perpetuate this witch hunt? The Mueller investigation has morphed from chasing after paid-for allegations of Russian collusion to chasing down Paul Manafort’s and Michael Cohen’s transgressions — a testament to the investigation’s ineffectiveness. However justified, albeit politically motivated, the underlying prosecutions of Manafort and Cohen may be, they stem from business dealings long before there was a Trump campaign. Mueller and his team of Democratic lawyers should either produce actual evidence of collusion or pack it up. There’s no fire here; there isn’t even any smoke. In the face of a booming economy, the left is just running out of ways to attack President Trump — and hoping you won’t notice. Dan Backer is founding attorney of political.law, a campaign-finance and political law firm in Alexandria, Virginia. If you can't see this reader poll, please refresh your page.<doc-sep>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 Trump Donald TrumpTrump lashes out after grand jury seated for New York criminal probe Schumer tees up vote on Jan. 6 commission bill Senators struggle to save Jan. 6 commission MORE. But a few things are clear in this case. 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. ADVERTISEMENT If, on the other hand, 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 a lawyer for Trump and advancing the 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 in the United States. 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 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 reading it while running. He did not mean while running for office. He meant that a criminal statute must not be subject to varying reasonable interpretations. Anyone reading the collection of statutes and regulations 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 that Cohen alleged against Trump. 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 Clinton Hillary Diane Rodham ClintonHillary Clinton takes on conspiracy theories on Borat special Top general: Russia, China will look to expand influence in Middle East as US pulls back We have a chance to halt climate change if we stop destroying carbon sinks and cut methane MORE, civil libertarians would be up in arms about their ambiguity. As a civil libertarian who voted for and contributed to the Clinton campaign in 2016, 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 Cohen, coupled with the conviction of Paul Manafort Paul John ManafortLegal intrigue swirls over ex-Trump exec Weisselberg: Five key points There was Trump-Russia collusion — and Trump pardoned the colluder Treasury: Manafort associate passed 'sensitive' campaign data to Russian intelligence MORE, do not make 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. However, the rule of law demands that we distinguish between political sins and federal felonies. As the record now stands, Trump appears to be guilty of political sins, but not federal felonies or impeachable offenses. You would never know that if you just watched those cable television channels that are determined to find crimes and impeachable offenses against President Trump without regard to the law 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 the plea of guilty of Cohen, on the one hand, and crimes or impeachable offenses against 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.<doc-sep>Our friend and former FEC chairman Bradley Smith has a good piece highlighting a central ambiguity in the Trump case: … regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures. It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages and Brooks Brothers suits — seems more like bribery than funding campaign speech. That’s why another part of the statute defines “personal use” as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even though the candidate might benefit from the expenditure. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate. Suppose, for example, that Trump had told his lawyers, “Look, these complaints about Trump University have no merit, but they embarrass me as a candidate. Get them settled.” Are the settlements thus “campaign expenses”? The obvious answer is no, even though the payments were intended to benefit Trump as a candidate. If the opposite were true and they were considered campaign expenses, then not only could Trump pay them with campaign funds, but also he would be required to pay these business expenses from campaign funds. Is that what campaign donations are for? But let’s go in that direction. Suppose Trump had used campaign funds to pay off these women. Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to “personal use”? Or that federal prosecutors would not have sought a guilty plea from Cohen on that count? And that gets us to a troubling nub of campaign finance laws: Too often, you can get your target coming or going.<doc-sep>what was said Ainsley Earhardt, “Fox & Friends” host: “Did you direct him to make the payments?” President Trump: “He made the deal. He made the deals.” the facts This is misleading. Michael D. Cohen, Mr. Trump’s longtime lawyer, made hush money payments before the 2016 election to two women who claimed to have had affairs with Mr. Trump: Karen McDougal, a former Playboy model, and Stephanie Clifford, a pornographic film actress known as Stormy Daniels. Mr. Cohen pleaded guilty to breaking campaign finance laws and other charges on Tuesday. Mr. Trump’s suggestion that Mr. Cohen acted on his own is contradicted by court filings and by Mr. Cohen himself. The events are described in court documents that do not name the two women. However, both Ms. McDougal and Ms. Clifford publicly discussed their stories; additionally, Mr. Cohen’s lawyer, Lanny J. Davis, has verified their identities in news media interviews. Here’s the timeline: August 2015: American Media Inc., the owner of The National Enquirer, agreed to help identify negative stories about Mr. Trump’s alleged affairs “so they could be purchased and their publication avoided” in coordination with Mr. Cohen and “one or more members” of the Trump campaign. June 2016: The tabloid began negotiating with Ms. McDougal for the rights to her story at Mr. Cohen’s “urging” and with his promise that the company would be reimbursed. August 2016: A.M.I. agreed to pay Ms. McDougal $150,000. October 2016: Mr. Cohen formed a shell company to reimburse A.M.I. $125,000 for the payment to Ms. McDougal. That same month, Mr. Cohen agreed to pay Ms. Clifford $130,000 for her silence. 2017: Mr. Cohen received monthly payments that totaled $420,000 from the Trump Organization, which included the reimbursement for his payment to Ms. Clifford and a bonus. Mr. Cohen sent the company phony monthly invoices for legal services under a nonexistent retainer agreement. In court, Mr. Cohen said he made those payments at Mr. Trump’s direction. “I and the C.E.O. of a media company at the request of the candidate worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information,” he said on Tuesday, referring to the payment to Ms. McDougal.<doc-sep>
President Donald Trump seems to misunderstand the nation's campaign-finance laws, judging by his comments in a Fox News interview. The president may have inadvertently admitted to a crime as a result. President Donald Trump came very close to outright saying he committed a federal crime during a Fox News interview aired Wednesday, and that may stem from a lack of understanding of the nation's campaign-finance laws. During his interview with "Fox and Friends" host Ainsley Earhardt, Trump was asked if he knew of the payments to former Playboy model Karen McDougal and adult-film star Stormy Daniels ahead of the 2016 presidential election. Earhardt's question came after Trump's former longtime lawyer, Michael Cohen, said under oath in federal court that Trump directed him to knowingly break the law to boost his own candidacy by paying off those women to keep silent allegations of affairs. "Later on I knew," Trump said. "Later on. But you have to understand, Ainsley, what he did — and they weren't taken out of campaign finance. That's a big thing. That's a much bigger thing. Did they come out of the campaign? They came from me. I tweeted about it. I don’t know if you know, but I tweeted about the payments. But they didn’t come out of the campaign. In fact, my first question when I heard about it was, 'Did they come out of the campaign?' Because that could be a little dicey. They didn't come out of the campaign, and that's big. It's not even a campaign violation." Cohen was charged with a pair of campaign-finance violations stemming from those payments, which the government viewed as improper, as part of a plea deal he worked out with prosecutors. Cohen explained that he committed the campaign-finance violations "at the direction of the candidate" and with the "purpose of influencing the election." The attorney said that, at Trump's direction, he moved to keep both McDougal and Daniels, whose real name is Stephanie Clifford, from publicly disclosing damaging information that would hurt Trump's campaign. McDougal's story of an affair with Trump was purchased by American Media Inc., whose head, David Pecker, is a longtime friend of Trump. The National Enquirer, which is owned by AMI, purchased the rights to McDougal's story for $150,000 in August 2016 but never published it. That practice is known as "catch and kill." And just days before the 2016 presidential election, Cohen facilitated a $130,000 payment to Daniels to keep her quiet about her allegation of having a 2006 affair with Trump — an allegation Trump has denied. Prosecutors wrote that they could back up Cohen's admissions through evidence obtained from the FBI's April raids on Cohen's home, office, and hotel room that included documents, electronic devices, audio recordings, text messages, messages sent on encrypted apps, phone records, and emails. The payments don't have to come from Trump's campaign to be a campaign-finance violation Based on Trump's interview on Fox, he seems to think that a campaign-finance violation would have occurred if campaign funds were used to pay off Daniels and McDougal, rather than his personal cash, which was used to reimburse Cohen for the initial Daniels payment. The reverse of this is true, as The Huffington Post first reported. If Trump had routed money through his campaign to pay off women, it would be legal. Campaigns can spend unlimited amounts of money. The problem would have been that if Trump did use his campaign to pay off any women, it would have defeated the purpose of making the payment, which was to ensure silence. Such an expenditure would have had to be reported to the Federal Election Commission and publicly disclosed. Cohen, meanwhile, pleaded guilty to making an excessive contribution far beyond the legal limit. And if the McDougal deal was made to help boost Trump's campaign, which was the case, according to Cohen's testimony, that too is an excessive contribution. Neither was reported by the campaign, though the purpose of the donations was to benefit it, Cohen said. Trump first disclosed his reimbursement to Cohen, which came in the form of a retainer that was paid out throughout 2017, on his latest financial disclosure report earlier this year.