The prosecutor must establish that Trump understood that his conduct was illegal. The government is unlikely to meet such a demanding burden of proof.
You can be forgiven if you’ve forgotten there even is a Mueller investigation.
Just a week ago, the country was on tenterhooks as the jury in Paul Manafort’s trial headed into the weekend without having reached a verdict. Would they hang? Had Special Counsel Robert Mueller overreached? Did federal judge T. S. Ellis of the Eastern District of Virginia undermine the prosecutors?
Such is the permanent frenzy of the Trump news cycle that, even with Tuesday’s convictions, Manafort and Mueller seem like old news. They’ve been superseded by Michael Cohen’s guilty plea; specifically, by the fallout of Cohen’s having implicated the president in felony campaign-finance offenses during his allocution in Manhattan federal court late Tuesday afternoon — an otherworldly media moment, simultaneous with the jury verdict in Manafort’s trial 200 miles south.
“Implicate” is a loaded word.
In this week’s columns, we have looked closely at the Cohen case; we’ve considered salient differences in how campaign-finance law applies to candidates, such as Trump, and other putative donors, such as Cohen; and we’ve analyzed potential ramifications under New York law from the manner in which Cohen and the Trump Organization accounted for the reimbursement of Cohen’s $130,000 payment to Stephanie Clifford (better known as the porn star “Stormy Daniels,” who alleges a tryst with Donald Trump a dozen years ago; the president denies it — not very persuasively).
We are still at an early stage, with much to learn and many news cycles yet to be spun. For now, though, it is safe to say only that Cohen has implicated the president in hush-money transactions, not in crimes. Paying hush money is not admirable, but neither is it criminal. Lanny Davis’s meanderings notwithstanding, acknowledgment that the president is complicit in Cohen’s conduct is not tantamount to asserting that he is culpable in Cohen’s felonies.
Malum Prohibitum
This is not an endorsement of the president’s behavior. It is simply a reflection on the complexities of campaign-finance law. For conservatives, it also reflects a fact of life: Regulating behavior that is not innately criminal is a tortuous endeavor, too intricate for mere mortals to foresee all the consequences. Inevitably, some outcomes are sure to defy our commitment to equal justice under the law.
Most criminal behavior is wrong by nature — malum in se. Laws prohibiting, say, murder or robbery are easy for the average person to grasp, and relatively easy to enforce evenhandedly if enforcement is done in good faith. But then there is the category of behavior that is not inherently wrong; it is wrong only because we choose to prohibit it — malum prohibitum.
Campaign spending, which makes possible robust political speech that the First Amendment is supposed to protect, is deemed “wrong,” or at least potentially evil, only because progressives insist that we regulate it. But it is regulation in the teeth of core liberties, so it is hard to do. The predictable result is regulatory ambiguity, which is an invitation to capricious outcomes and enforcement. Hence, to take the obvious example before us, Donald Trump and Michael Cohen can participate in the same transaction, doing essentially the same thing, and yet be treated differently because their status is different — candidate versus mere contributor.
There is a superficial appeal to the notion that if Cohen is guilty, Trump must be guilty. But of course, such logic must work reciprocally, too. That is, if Trump is innocent, Cohen must have pled guilty to a non-crime.
This theory is championed by some whip-smart lawyers, such as my friend Mark Levin and the eminent Bradley Smith, former chairman of the Federal Election Commission, who wrote a fine Washington Post op-ed on the subject this week. They argue that, despite his guilty plea, Cohen did not violate the campaign-finance laws. The idea is that paying hush money is not an “in-kind” campaign contribution even though the concealment of embarrassing conduct may have been intended, at least in part, to influence an election. Smith explains that paying for silence is more in the nature of a “personal use” expenditure — defined in the law as an obligation or expense that would exist even if the person for whom it is paid were not a candidate in an election campaign.
A candidate is not permitted to divert campaign funds to his personal use. Given that, Smith posits a deft “they get you coming or going” argument. Sure, Donald Trump’s political opponents are now saying he violated campaign-finance laws by failing to disclose the election-eve hush-money payments as campaign expenses. Yet what would have happened if Trump had regarded these payments as campaign expenses and used campaign funds to pay them? Does anyone doubt that many of these same opponents would insist that he violated campaign-finance laws by diverting campaign funds to his personal use?
I am persuaded by Smith’s and Levin’s reasoning. In a perfect world, it would carry the day. But far from a perfect world, ours is one in which this solid interpretation is not accepted by everyone who matters.
The Edwards Case: FEC v. DOJ
To underscore how vague these laws are: They have been construed contradictorily by the two government entities responsible for enforcing them: the FEC and the Justice Department. Worse, this was done in a case that very much resembles President Trump’s situation: the prosecution of John Edwards, the former North Carolina senator and Democratic vice-presidential candidate.
When Edwards ran for president in 2007–08, wealthy donors helped him conceal an extramarital affair with Rielle Hunter, who was pregnant with his child. The FEC did not see these expenditures as in-kind campaign contributions, notwithstanding that they were intended to influence the election, far exceeded contribution limits, and were not reported. In stark contrast, the Justice Department’s Public Integrity Section decided to indict Edwards on six felony counts of violating campaign-finance laws.
The ambiguity problem does not stop there. A skilled trial lawyer in his own right, Edwards and Abbe Lowell, his superb defense attorney, made all the convincing arguments advanced by Smith and Levin. While those arguments persuade me, they did not persuade Catherine Eagles, the judge in the 2012 trial. She allowed the prosecution’s case to go to the jury. Implicitly, that means the court ruled that a rational juror could convict Edwards of campaign-finance violations involving in-kind contributions made to conceal marital infidelity, the disclosure of which could have blown up Edwards’s presidential bid.
And matters get still murkier. Though Judge Eagles allowed the case to proceed to deliberations, it was palpably a weak case. Whatever spending the campaign-finance laws may legitimately capture, these expenditures were, at best, at the outer margins. Not surprisingly, the jury refused to convict Edwards. But, this being campaign-finance law, the result was nebulous: Edwards was acquitted on one count, but the jury hung on the other five. Then the Obama Justice Department, which could have retried the five unresolved charges, chose instead to drop the case.
It’s Bad Law, Not a Get-Trump Conspiracy
So, that is where things stand: vague laws lending themselves to inconsistent, unpredictable enforcement. Caprice naturally makes people suspicious. So some Trump supporters contend that, being hell-bent to get the president and having Cohen dead to rights on evading taxes on millions of dollars in income, Southern District of New York (SDNY) prosecutors pressured Cohen to plead guilty to non-crimes — the campaign-finance charges — so they could get him to implicate the president and start the ball rolling toward impeachment.
I don’t see it. The SDNY is run by a Trump-appointed U.S. attorney, Geoffrey Berman. Although he is recused from Cohen’s case, his office is run by lawyers he has chosen. The SDNY, moreover, has consulted closely with the Trump Justice Department here. (As we’ve previously noted, the Justice Department gets heavily involved in prosecutions against lawyers because of the knotty attorney–client privilege issues.)
Here I must make some disclosure. I was an SDNY prosecutor for almost 20 years. The acting U.S. attorney running the Cohen case is Rob Khuzami, one of my partners on the Blind Sheikh prosecution. Cohen’s lawyer, Guy Petrillo, was my appellate editor on the brief I wrote defending the convictions in that case in the Second Circuit. Given what I know of the culture of the SDNY, and of Khuzami and Petrillo, who are among the best and most ethical lawyers in this country, it is inconceivable to me that Cohen’s campaign-finance convictions are a get-Trump ploy. The Justice Department filed the charges because it believes, as it did in Edwards’s case, that campaign-finance law was violated by Cohen’s conduct — making an expenditure that far exceeded the donation limit, and causing an unlawful corporate expenditure, with both actions intended to affect the election. Cohen pled guilty because the risk of conviction was real — just as Edwards could have been convicted on any of the five counts on which his jury hung.
One can abhor the campaign-finance laws, and disagree with the decision to charge Cohen, while still accepting that the Justice Department, defense counsel, and the court are all proceeding in good faith.
The Impossibility of Proving Trump’s Willfulness
I believe this good faith will ultimately serve the president well. If I am right, Donald Trump will not face criminal campaign-finance charges. Cohen’s convictions would not preclude Trump’s lawyers from arguing that the expenditures at issue were not in-kind contributions. But it should never come to that. The president will not be charged because prosecutors cannot prove beyond a reasonable doubt that he had the required intent to violate the law.
Unlike Cohen, Trump, as the candidate, was not constrained by a dollar-amount limit in what he could spend on his campaign. Unlike Cohen (not to mention John Edwards), Trump is not a lawyer — indeed, he relied on his lawyer, Cohen, to deal with the legal aspects of business he trusted Cohen to conduct. Unlike Cohen, then, Trump did not have pressing reasons to keep campaign-finance regulations at the front of his mind.
When the non-disclosure arrangements were made, Trump may well have been thinking about the impact on his election chances that disclosure of extramarital affairs with a Playboy model and a porn star might have — especially after the infamous Access Hollywood tape emerged. But unlike Cohen, Trump had major concerns that had nothing to do with the election: personal embarrassment, the humiliation of his family, and the blow to his marriage.
All of this is must be weighed because the campaign-finance laws require prosecutors to establish that an accused person “knowingly and willfully” committed a violation. (See FEC Compendium of Federal Election Campaign Laws, Section 30109(d)(1)(A) of Title 52, U.S. Code.) Willfulness is the law’s most burdensome mens rea standard for prosecutors. It comes close to refuting the adage that “ignorance of the law is no excuse.” To prove that a defendant acted knowingly and willfully, the prosecutor must establish beyond a reasonable doubt that (a) he understood his conduct was illegal and (b) he acted with the purpose to disobey the law.
I do not see how the government could meet this demanding burden of proof — not unless there is as-yet-undisclosed evidence that Trump actually paused to consider the possibility that these payments were in-kind campaign expenditures, believed they might well be, yet went through with them anyway.
Finally, as we have repeatedly observed throughout the Mueller investigation and when news of Cohen’s guilty plea broke, Donald Trump is not going to face an indictment as long as he is president. Justice Department guidelines would not permit it. The germane issue here is not whether the SDNY can prove courtroom guilt. It is whether Congress may construe dubious campaign-finance infractions as high crimes and misdemeanors. That is, the question is whether the president may be impeached and removed over this.
That seems implausible, to put it mildly. If the FEC and the Justice Department, the expert enforcers of campaign-finance laws, cannot even agree on what a crime is, how can there be a high crime? It is true enough, as I have frequently pointed out, that Congress need not find a penal offense in order to find an impeachable offense. That, however, is because impeachment is supposed to be reserved for egregious official misconduct that amounts to a profound abuse of power or betrayal of an official’s fiduciary duties.
This doesn’t make the cut.
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