The chorus of Trump-haters rushing to brand President Trump a criminal has gotten considerably louder since last Friday. That was the day prosecutors in the Southern District of New York and from Special Counsel Robert Mueller’s office separately filed their sentencing recommendations against ex-Trump personal lawyer Michael Cohen. Cohen had pleaded guilty to a variety of charges, including of lying to Congress. The Mueller sentencing memo contained some teasers on the Russian collusion investigation. However, the teasers seem to have fallen flat, including the Moscow tower project promoted by Cohen, which never got off the ground, and a cryptic reference to “political synergy” offered by a Russian official as early as 2015 that Cohen apparently did not pursue. Instead, the Trump-haters have turned their attention to the portion of the New York prosecutors’ sentencing memorandum regarding Cohen’s admitted federal election campaign finance law violations, which the Trump-haters are counting on to spell trouble for the president.
The prosecutors in New York accepted as true in their sentencing memorandum Cohen’s claim that he had arranged for the payment of hush money to two past alleged Trump paramours in violation of federal election campaign finance laws, doing so “in coordination with and at the direction of” President Trump (referred to as “Individual #1” in their sentencing memo). That is all the Trump-haters had to hear before declaring that it was curtains for the president. Smelling blood in the water, they are looking beyond impeachment to possible jail time once the president leaves office.
On Sunday morning’s edition of CNN’s Reliable Sources, for example, Watergate reporter Carl Bernstein, still living on his reputation from that decades-old scandal, said, “There’s something much more important than just impeachment going on, and that is the fact that Donald Trump for the first time in his life is cornered.”
The Obama administration’s former acting solicitor general Neal Katyal said on CNN: “Even if a sitting president can’t be indicted, he’s got to know his future looks like it’s behind bars unless he cuts some sort of deal with the prosecutors.”
Representative Adam Schiff (D-Calif.), likely to become the next chairman of the House Intelligence Committee when the Democrats assume control of the House in January, painted his own grim picture for President Trump once he leaves office. "There’s a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him. That he may be the first president in quite some time to face the real prospect of jail time," he said Sunday on CBS's "Face the Nation."
Former CIA Director John Brennan, an avowed enemy of President Trump, tweeted that he took “great solace” in knowing “how impossible it will be” for the president “to escape American justice."
Former FBI Director James Comey, another avowed enemy of President Trump who has his own legal problems stemming from his possible perjury before Congress and his leaking of government documents, declared that the president was in serious legal jeopardy of being named an unindicted co-conspirator. "The government wouldn't make that sponsoring allegation if they weren't seriously contemplating going forward with criminal charges,” he told Nicolle Wallace, host of MSNBC's "Deadline White House," during a discussion at the 92nd Street Y in New York Sunday night.
Ironically, under the criminal “specific intent” standard that Comey himself applied in evaluating whether Hillary Clinton’s e-mail transgressions were worthy of criminal prosecution, federal prosecutors will have a very hard time proving that President Trump criminally violated the federal election campaign finance laws. They will need credible corroborating evidence proving beyond a reasonable doubt that President Trump had specific criminal intent to direct Cohen to violate the contribution and disclosure provisions of the federal election campaign finance laws, or that he persuaded Cohen to perjure himself under oath. Just proving Cohen’s claim that the president directed Cohen to make the arrangements for paying off his two alleged paramours means nothing in and of itself.
Former chair of the Federal Election Commission (FEC) Bradley Smith has provided a cogent explanation of the problem that prosecutors will face in trying to hang a criminal violation of the federal election campaign finance laws around President Trump’s neck:
“…[R]egardless 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…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.”
Mr. Bradley conceded that that the hush money “payments were unseemly.” However, he added, “unseemliness doesn’t make something illegal.” Since “the law is murky about whether paying hush money to a mistress” is a campaign expense or a personal expense, “we would not usually expect prosecutors to charge the individuals with a 'knowing and willful' violation, leading to criminal charges and possible jail time.”
The outcome of the criminal case against John Edwards, which centered on the prosecution’s allegation that Edwards had illegally used campaign donations to hide information from voters and his sick wife regarding his mistress and a love child, is instructive. The jury acquitted Edwards of one key charge involving donations of more than $725,000 to help Edwards during his 2008 presidential campaign, during which large amounts were spent to cover up the sordid affair. The Department of Justice decided that it would not retry Edwards on the five charges of campaign finance fraud on which the jury could not reach a verdict. The case against Edwards was far more clear-cut than Cohen’s accusations against President Trump that the New York federal prosecutors have accepted as true. Donald Trump would have more clearly been in jeopardy of committing a criminal violation of the federal election campaign finance laws if he had knowingly and willfully directed Cohen or a campaign aide to wrongfully dip into the campaign coffers to settle a personal matter. Instead, it appears that President Trump used his personal lawyer to solve a personal problem, paid for ultimately from his own personal funds, without touching any existing campaign funds.
Moreover, Donald Trump's reputation as a womanizer was already well known to the voters, thanks to his long history in appearing on the front pages of tabloid publications and the damage already caused by the salacious Access Hollywood tape. Against that background, the notion that his primary purpose in continuing to maintain the secrecy of two past alleged consensual affairs was to suddenly influence the 2016 election is preposterous.
Finally, even if Cohen’s loan could somehow be considered an illegal campaign contribution, that is Cohen’s problem. It only becomes President Trump’s problem if the federal prosecutors can meet their burden of proving the president knowingly and willfully directed Cohen to violate the federal election campaign finance law’s contribution limit or disclosure requirements, or that Mr. Trump suborned perjury by persuading Cohen to lie under oath. “The president is entitled to pay hush money to anyone he wants during a campaign,” Professor Alan Dershowitz said last August on MSNBC. “There are no restrictions on what a candidate can contribute to his own campaign. So if, in fact, the president directed Cohen to do it as his lawyer and was going to compensate him for it, the president committed no crime.”
Let the Trump-haters drive themselves crazy chasing the hush money allegations. There is nothing revealed to date coming anywhere close to substantiating Cohen’s charge that he acted at the direction of and in coordination with President Trump as part of a criminal conspiracy to knowingly and willfully violate the federal election campaign finance laws. Absent a true smoking gun, a partisan impeachment in the Democrat House will die there. The Senate will not convict. Moreover, without such a smoking gun, federal prosecutors will have likely no more luck going against Mr. Trump criminally, before or after he leaves office, then prosecutors did against Edwards six years ago.