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Analysis: Why was the Cohen payment to Stormy Daniels a crime at all?

Michael Cohen, former lawyer to U.S. President Donald Trump, exits the Federal Courthouse on Tuesday in New York City. Cohen reached an agreement with prosecutors, pleading guilty to charges involving bank fraud, tax fraud and campaign finance violations. (Photo by Yana Paskova/Getty Images)

Amid all the hoopla from Tuesday’s Michael Cohen/Paul Manafort media bonanza, exactly one revelation emerged that actually touched on President Donald Trump: Michael Cohen’s contention, made during his allocution, that then-candidate Trump directed him to violate campaign finance laws by paying off Stormy Daniels with his own money.

The rest of the hyperventilating about Tuesday’s events is based on the assumption — or in the case of many media figures, the barely-disguised hope — that either Cohen or Manafort can or will “roll” on Trump and testify that he colluded with the Russians to influence the 2016 election. Suffice it to say, at this point that sounds more like wishful thinking than an actual prediction based on events.

All of the other charges that Cohen and Manafort were convicted of (or pleaded to) Tuesday pertain to events that occurred either before their time with the Trump campaign, or were completely unrelated to their association with Trump. However, by far the most important moment of the day came when Cohen directly fingered Trump as the coordinator of a campaign finance violation.

President Trump himself took to Twitter to claim that what Cohen implicated him in was not, in fact, a crime:

With due respect to the president, this is simply not correct.

I am a former election lawyer myself, and I know that it is true that candidates violate FEC rules literally almost all the time. Especially in the case of large campaigns, it is difficult to establish full compliance in a timely fashion sometimes, and many candidates (even conscientious ones) have been appropriately dinged with fines and had to file amended reports.

Most violations of campaign finance laws are in fact civil rather than criminal in nature and can be handled with a fine and an amended FEC report; however, in the case of “knowing and willful” violations of the law, criminal penalties definitely attach.

52 U.S.C. § 30109(d) clearly sets forth that knowing and willful violations of campaign finance laws that involve contributions of more than $25,000 in a calendar year (as the Cohen payments did) are felonies punishable by up to five years in prison.

What is unclear to many people is why Cohen’s payment to Daniels violated campaign finance laws at all. It is highly probable, after all, that the campaign itself could have paid Daniels the hush money in an effort to protect Trump’s reputation as a candidate; after all, a jury failed to convict former Democratic presidential candidate John Edwards on that very basis, even though the prosecution provided evidence that a single donor illegally contributed an astounding $700,000 toward the payment made to Edwards’ mistress.

The answer lies in the way the payment was structured, which tends to show that the Trump campaign was intentionally circumventing campaign finance laws in an attempt to prevent the payment from ever having been disclosed on an FEC report.

What went wrong?

The first mistake the campaign made was having Cohen pay Daniels with his own money, rather than with campaign funds. The reason this is illegal is simple: because of the size of the contribution, it constituted a donation to the campaign far in excess of legally allowable amounts.

If you are struggling to understand why it should have been illegal for Cohen to pay Daniels with his own money at Trump’s behest, imagine if Trump had instead called Cohen and asked him to call a local TV station and buy $130,000 worth of commercials supporting Donald Trump out of his own pocket.

That would clearly and obviously have been a contribution to Trump’s campaign both de facto and de jure, and the payment he made to Daniels was no different. It was an expenditure of money made in an attempt to influence the outcome of the election, and was subject to both donation limits and campaign disclosure laws; neither of which the Trump campaign made any attempt to comply with.

The botched cover-up was the real problem

Still, the situation could have been salvaged with a fine (or even just a reprimand) if the Trump campaign had promptly repaid Cohen and filed a proper FEC report documenting the payment. Campaigns do this sort of thing sometimes; some campaign worker pays for some signs out of their own pocket, they get paid back by the campaign the next day, the payment gets listed in an FEC report as a reimbursement for signs purchased, nobody freaks out about it.

Instead, Trump apparently paid Cohen out of Trump Organization funds rather than out of campaign funds — which he would have had no reason to do, except to avoid having to disclose on a publicly available FEC report that the payment was made at all. It would have frankly been better to make no payment to Cohen at all than to make a payment that looked for all the world like a way to avoid disclosure. That is likely what moved the violation from the civil to the criminal realm.

What about Trump's defense?

What Cohen confessed to in court Tuesday is that he, at the behest of Trump, willfully and knowingly violated the campaign finance laws by making the payment to Daniels.

In a recently-released teaser from "Fox & Friends," the president previewed his defense, claiming that he didn't know about the payments until "later" and stating his belief that the arrangement wasn't a crime because he repaid Cohen out of his own funds.

As set forth above, this is completely backward. If Cohen had been reimbursed by the campaign for an illegal contribution to the campaign, then this would be no big deal. It is precisely because the contribution to the campaign was not reimbursed by the campaign that this is likely a criminal issue rather than a civil one.

It is, of course, up to each individual person as to whether they believe Cohen that this was intentional and that Trump knew about it at the time, or whether they believe Trump that it was a mere oversight that he learned about later, but a person would have to have extraordinary trust in the honesty of Donald Trump to believe that a series of transaction that appears to have been carefully constructed to intentionally avoid disclosure of this payment was, in fact, a complete accident.

As to whether this particular felony constitutes an “impeachable offense,” that is not for me to say. To paraphrase the late President Gerald Ford, that’s nobody’s business but the House of Representatives.

One last thing…
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