The Corner

Law & the Courts

A Peeved Response to Jonah

Donald Trump arrives with his attorney Michael Cohen during a campaign stop at the New Spirit Revival Center church in Cleveland Heights, Ohio, September 21, 2016. (Jonathan Ernst/File Photo/Reuters)

In response to Political Standards in the Post-Clinton and Trump Era

While I appreciate the gracious caveats in my friend Jonah’s Goldberg’s post, it has gotten under my skin nevertheless. Before I get to why his argument weirdly misses the point I was actually addressing in the Fox article he cites, let me explain what I find grating.

Jonah seizes on a comparison I made between two different campaign finance law scenarios: (a) the $280,000 in alleged violations as to which the Trump Justice Department charged Michael Cohen with felonies, and in which Cohen implicated President Trump during his guilty plea; and (b) the approximately $2 million in violations as to which the Obama Justice Department elected to decline prosecution, permitting them to be disposed of by a $375,000 administrative fine. Jonah counters: “I don’t think the two infractions are comparable in ways that really matter.”

Jonah’s point is that, as a matter of cosmic justice, Trump’s offense is clearly worse, and his lament is that my argument reflects a longstanding trend, in which commentators and the broader society trivialize issues of character and morality as if they hinged on legal hair-splitting.

Here’s the thing: I agree with Jonah about the trend . . . and I’m pretty sure he knows I agree with him.

I’ve been writing for years that we should demand more of people who stand for or hold public office, and that they manage (however barely) to avoid being indicted. I’ve also lamented, at book length, the media and political class’s failure to distinguish penal crimes from high crimes and misdemeanors. That is tantamount to a failure to distinguish between the mere question of guilt in some criminal transaction and the more significant question of fitness to wield political power. Not surprisingly, then, it is perfectly obvious to me that the intent and conduct underlying Trump’s alleged campaign-finance violation are morally worse than that underlying Obama’s campaign-finance violation.

Let me turn this around for a moment by focusing on legal standards (the actual point of my article) rather than Jonah’s preferred “political standards” (encompassing morality and ethics).

There is a worrisome trend in the law that is just as longstanding as the false equivalency between character and criminal culpability that Jonah bewails. It is this: Because of the proliferation of regulation, which includes criminal-law sanctions, it is increasingly possible to convict a person on some technical offense because we don’t like him, or because we disapprove of something he’s done, which happens not to be against the law.

I could thus write a post, very much like Jonah’s, in which I observe that I have a longtime peeve about the notion that it is legitimate to stretch legal technicalities in order to criminalize political adversaries, or criminalize behavior that is unsavory but legal. Then I could say there is a whiff of this in Jonah’s post. His unfavorable comparison of Trump to Obama — in a context that is actually about whether Trump should be charged with a felony, not whether he is morally culpable — could be taken to imply that Trump ought to be indicted, where Obama was not, because Trump is a lout, extramarital sex is profoundly deceitful, and non-disclosure agreements to conceal deep character flaws disserve the public.

But the thing is, I would not write such a post because I don’t believe Jonah thinks it is legitimate to distort the law this way. I don’t think the argument he is making, which is about the disturbing cultural trend of trivializing immorality with legal razzle-dazzle, is tantamount to saying, “But let’s use legal razzle-dazzle to convict the immoral, because they’ve got it coming.” I would not want to mislead anyone who listens to me into the notion that this is where Jonah is coming from — and I don’t think tossing in a vaporous qualifier that he was just positing “an illustration of a larger analytical point” would cover me on that score.

That’s what annoys me. I don’t understand why Jonah tees this up as if I were on the other side of something about which I clearly agree with him, using as Exhibit A something I wrote that addresses a different subject.

Jonah stresses that the campaign-finance infractions — alleged against Trump and established against Obama — are not comparable “in ways that really matter.” But as he knows, what “really matters” depends on the context. I was not talking about Trump’s character; I was talking about whether his conduct amounted to a crime; in that context, what “really matters” is law and precedent. I was not turning a moral question into a legal issue; I was addressing the legal issue that has to be addressed, like it or not.

The point of my article was twofold. First, reading the tea leaves from the pleadings and actions of the office where I served as a prosecutor for nearly 20 years, I assessed that the U.S. attorney for the Southern District of New York is preparing to indict President Trump. (It is the SDNY, not Mueller’s prosecutors, that composed the pre-sentencing memo that Jonah aptly describes as “paean to campaign finance law.”) Second, I anticipated the legal and policy arguments that Trump would make if I am right and he is ultimately charged.

In that context, and on the latter point, I made observations that ought to be unremarkable: Besides contending (a) that there is a significant legal question about whether the Trump/Cohen transactions amount to in-kind campaign contributions under federal law; and (b) that, as a matter of law, Cohen’s concession on that point (by pleading guilty without contesting it) is not binding on Trump; Trump’s defense would also argue (c) that these transactions, under lots of precedent prominently including the Obama violation, should be treated as an administrative matter to be sorted out by the FEC, not the subject of a felony prosecution. And on that last point, Jonah’s observations about comparative morality would be (or at least should be) irrelevant to the exercise of prosecutorial discretion. That is, because Trump’s underlying conduct, however skeevy, is not illegal, what would “really matter” more to a prosecutor is that the Obama transactions were unquestionably illegal campaign contributions while there is a colorable question whether Trump’s were campaign contributions at all.

As much as I love Jonah, I don’t understand how any of that could be taken to hint even ever so slightly that I’m okay with immorality as long as it may not be indictable. I’m not, and I don’t think I’ve given any indication to the contrary.

I’ll repeat what I’ve said about a million times. President Trump’s election is explainable by two words: Hillary Clinton. His victory, regardless of how he sees it, is not an endorsement of his character or his lack of regard for presidential norms. Nor is the fact that he has a legal defense to a potential felony charge an endorsement of the behavior that has put him in jeopardy. Voters who are not already died-in-the-wool Trumpkins or Trump-haters are apt to care more about the tawdriness than about what abstruse campaign-finance laws have to say about it.

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