The Corner

Law & the Courts

Should the Law be Clear about What’s Illegal?

David has a typically robust piece up on the home-page taking the view that the law probably isn’t on Trump’s side in the Cohen case. I urge you to read it, but I want to take issue with one point that gets close to the crux of the matter. Here is the passage:

Campaign-finance law is constructed from the ground-up to require candidate transparency and guard against corruption. Thus, it is purposefully very hard for candidates to find a way to legally and quietly use substantial sums of money to cover up dirty deeds. In his essay, Smith argues, “Indeed, it is quite probable that many of those now baying for Trump’s scalp for illegal campaign contributions would be leading a charge to prosecute Trump for illegal ‘personal use’ of campaign funds had he made the payments from his campaign treasury.”

That’s likely correct — and evidence that campaign-finance law is working as intended. In other words, if you’re a campaign-finance lawyer, and a candidate asks your advice on how to buy the silence of a porn star and hide that payment entirely from the American people, your best response should be, “Have you considered not running for office?”

But it can’t be that a law that is so ambiguous that gets you coming and going is a good law.

The lawyer’s answer in David’s hypothetical is the right moral answer and would be all that’s necessary if only upstanding people ran for office. But if we are going to ruin people’s lives and potentially take away their liberty on the basis of the law, we should make sure it is written in such a way that we can reliably answer in advance whether something is legal or not. If we want to make it illegal for anyone running for office to enter into a NDA with a mistress, let’s pass that law, or if we want pay-offs to mistresses to be considered campaign expenses (which is the logic of the government’s position), let’s write that down, too. But the SDNY has adopted an adventurously aggressive interpretation of an ambiguous area of the law, probably in part because of who the target is and how unpopular he is. This doesn’t strike me as a great victory for the rule of law.