Evan Vucci/AP Photo Opinion The real obstacles to Trump's prosecution

Rich Lowry is editor of National Review and a contributing editor with Politico Magazine.





The most legally fraught part of the Russia probe now revolves around payments to an American porn star.

After two years of obsession with Russia, including speculation in respectable quarters that Donald Trump might have been a Russian spy going back to 1987, there is a sense of delight in the press and among Democrats in nailing the president on something completely different.


As of yet, instead of a dastardly scheme to participate with the Russians in the hacking of Democratic emails to subvert the election, prosecutors have uncovered a dastardly scheme to try to keep from the voters — as if they weren’t aware — that Trump is a womanizer with low scruples.

The advantage of the story of the hush payments to Stormy Daniels and Karen McDougal is that they actually happened and always passed the plausibility test. To credit the payoffs, it didn’t require believing in a well-coordinated scheme between a foreign intelligence service and the most shambolic presidential campaign of the modern era. All it took was imagining Trump, Michael Cohen and a checkbook, operating on a fairly routine basis.

What is a fixer for, if not to fix something like this?

Everyone should agree that the payments to the women, not to mention the underlying conduct that occasioned them, were sleazy and, given the timing so close to the election, suspicious.

But that’s not the live issue. Because Democrats want to see Trump impeached or even jailed (Adam Schiff over the weekend spoke of the latter possibility), the question is whether the payments were flat violations of campaign-finance law. More specifically, it is whether Trump can be successfully prosecuted for them once he leaves office, since current Department of Justice guidance says a sitting president can’t be indicted.

The law, and common sense, suggest the answer is “no.”

The idea that Trump is going to lose reelection in November 2020, then having suffered the humiliation of getting booted by the voters, get indicted and stand trial on a dubious campaign-finance violation dating from 2016 is fantastical. This would be a banana-republic move, and is more a Democratic revenge fantasy — or should be — than a realistic scenario.

There are major legal obstacles to Trump’s prosecution. One is whether he had the requisite intent of violating the law, and here the standard is very high. Trump can plausibly plead ignorance of the niceties of the law and say he was relying on the advice of his lawyer.

The other is even more fundamental. Did the payments constitute campaign contributions at all? Bradley Smith, a former chairman of the Federal Election Commission and current head of the Institute for Free Speech, argues persuasively that they do not.

Federal law defines a contribution as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.”

That would seem straightforward enough, but Smith points out that another part of the law defines what is a expenditure for personal use, namely anything “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”

“Irrespective of the campaign” is the key phrase. It is meant to keep campaign monies from being used for things that might influence a campaign, but that a candidate would spend on anyway — food and supplies, clothing, and mortgages, are cited as a few examples.

Payments to mistresses don’t make the list, but the rules weren’t written with Trump in mind. He didn’t undertake his flings with Daniels or McDougal as part of his campaign, and it‘s easy to imagine him paying them off even if he weren’t running. He is a past master at nondisclosure agreements and other tactics of celebrities with potential embarrassing stories to keep under wraps.

Cohen, who has had every incentive to accede to the prosecutor’s interpretation of the law and cooperate against Trump, made a noteworthy point in his sentencing memo. He said he acted to stop stories from getting out that would “adversely affect the Campaign and cause personal embarrassment to Client-1 and his family.”

The latter would have been a strong incentive to buy off Daniels and McDougal, regardless. Indeed, Bradley Smith makes a telling point: If Trump had paid off Stormy Daniels and Karen McDougal with campaign funds, certainly all of his critics would be screaming that he’d improperly diverted campaign resources for personal use.

There are key factual differences, but the case against Trump is a close cousin of the failed campaign-finance prosecution against John Edwards for payments by his contributors to his mistress.

In that case, two former FEC commissioners said they would have advised Edwards that the payments meant to avoid personal embarrassment weren’t campaign expenditures.

The ethics outfit CREW filed a brief opposing the prosecution noting some of the same absurdities that the case against Trump raises. If any payments to maintain a candidate’s image are campaign contributions, can a candidate concerned with his family image pay for child care with campaign funds, or with his reputation for probity pay business debts with campaign money? Would Edwards have been on the right side of the law if he had made the payments to his mistress from the campaign coffers?

CREW concludes that the government’s skewed interpretation of the law would invite campaign spending on all the personal expenses that the law is explicitly meant to exclude.

With Trump, evidence of something like Russia collusion still might emerge, but in the meantime his opponents will work with whatever material they have, no matter how tawdry or removed from the alleged offense that got the investigative ball rolling.



