Cohen Pleaded Guilty to Charges That Are Not Crimes, Says Former FEC Chair

Michael Cohen, formerly an attorney for President Donald Trump, pleaded guilty on Aug. 21 to campaign finance charges that are not crimes, according to former Federal Elections Commission chair Bradley Smith.

Cohen pleaded guilty to eight charges in a Manhattan court to charges of tax evasion, making false statements to banks, and campaign finance violations. The campaign finance charges are related to a $130,000 payment Cohen made in exchange for the silence of a woman who claims to have had an affair with Trump more than a decade ago. The prosecutors allege that the payment constitutes a campaign contribution and thus violates the law because it exceeds the individual contribution limit and was made using a corporation.

In charging Cohen, the prosecutors cited a broad legal definition of what constitutes a campaign contribution but failed to mention a specific prohibition on the personal use of campaign funds, which disqualifies the payment as a contribution.

Under the broad definition in federal law, anything of value used to influence any election for federal office constitutes a campaign contribution. Yet a personal-use prohibition under the same law narrows the scope of what can be counted as a campaign expense to exclude all payments “that would exist irrespective of the candidate’s election campaign.”

“The prosecutors in these cases always want to just focus on the idea that it’s for the purpose of influencing the campaign,” Bradley said. “Many of them are not even aware of the other provision in this statute–the prohibition on personal use–that would seem to narrow that definition down.”

For example, a tailored suit might make the candidate look good on the campaign trail, but is an expense that would exist irrespective of his campaign for office, Bradley explained. The law specifically lists a number of examples of such expenses, including clothing purchases, country club memberships, or tickets to a sporting event.

Under the same statute, a payment securing the silence of a woman could also exist irrespective of the campaign. For example, such a payment can benefit the candidate’s personal business prospects and family life. Thus, Cohen’s payment is specifically prohibited from being counted as a campaign expense and is not a campaign contribution.

As an example, Bradley said that if Trump settled the lawsuits against Trump University with the intention of benefiting his campaign, the settlement would clearly not count as a campaign expense, since the lawsuit existed irrespective of the campaign and the settlement could exist for other reasons.

“When you run for office and you buy TV ads, or you rent a campaign headquarters office space, or you hire a campaign manager or a campaign accountant, or you buy phones your staffers are to use on the campaign, those are all things done because you’re running for office,” Bradley said.

“There are many other things that you do or that you spend money on that benefit your campaign, that you may even plan on them benefitting your campaign, hope that they benefit your campaign, but they are not campaign expenditures because they’re obligations that would potentially exist whether you were running for office or not.”

The distinction between what is and what is not a campaign expense is crucial for preventing candidates from using campaign funds for anything other than their campaigns—like a new car or a gold watch—with the intention of personally benefiting from the purchase.

“Michael Cohen plead [sic] guilty to two counts of campaign finance violations that are not a crime,” Trump wrote on Twitter on Aug. 22. “President Obama had a big campaign finance violation and it was easily settled!”

Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation and it was easily settled! — Donald J. Trump (@realDonaldTrump) August 22, 2018

Smith agreed with the president.

“My assessment would be that yes, Michael Cohen pleaded guilty to things that probably are not crimes,” Smith said.

In his message, Trump referred back to a $375,000 fine for campaign finance violations paid by then-President Barack Obama, one the largest fines ever imposed on a presidential campaign.

Judges have struggled for years with the broad definition the prosecutors are citing in the Cohen case. In 2012, former Sen. John Edwards was charged with campaign violations in connection to payments to a woman with whom he had an extramarital affair. The trial revolved largely around what constitutes a campaign expense. The jury could not reach a verdict and the Justice Department dropped the case.

The Supreme Court ruled in 1976 to strictly narrow the definition of what constituted an independent campaign expenditure in terms of speech. The broad scope of the law as it stood before the ruling imposed “direct and substantial restraints on the quantity of political speech” and was “unconstitutionally vague,” the court said.

“The courts have always faced a challenge in how do we narrow that definition down to something that is actually usable, that doesn’t leave everybody on the hook for everything they do that’s connected to politics,” Smith said.

In pleading guilty, Cohen said that Trump instructed him to make the payment to the woman in question. But the plea is not a binding legal precedent, according to Smith.

“It doesn’t affect the ability of the Trump folks to raise defenses,” he said.