Michael Cohen’s hush money plea marks rare 'win' in campaign system

Show Caption Hide Caption Trump avoids associates' legal troubles at rally President Donald Trump has avoided mentioning the legal troubles of two former close associates during the opening of a campaign rally in West Virginia. Instead, he spoke about the Russia "witch hunt" and immigration. (Aug. 21)

WASHINGTON – As President Donald Trump’s former fixer Michael Cohen stood in a courtroom this week and pleaded guilty to paying hush money to a porn star he was handing good government advocates something they haven’t had in a while: A win.

Despite a campaign finance system that members of both parties acknowledge is broken and a series of fumbled high-profile public corruption trials, the Cohen plea became the rare case to focus the public's attention on the vagaries of campaign law.

The Cohen case has brought the staid world of campaign finance regulations to the fore in large part because it involves the president, but also because of the scintillating details. Cohen, who once professed his loyalty by saying he would take a bullet for his boss, admitted Tuesday to paying off two women to quiet their allegations of relationships with Trump.

Prosecutors said Cohen worked with American Media Inc., publisher of supermarket tabloids, to pay the women for their stories, a "capture and kill" scheme to ensure the claims were never printed. The Associated Press reported Thursday that National Enquirer, which is owned by AMI, kept a safe of documents outlining payments it used to kill stories damaging to Trump.

“Before, you would talk to people about campaign-finance issues and their eyes would glaze over,” said Ann Ravel, a former Federal Election Commission chairwoman who left the commission last year in frustration.

"But now the public is getting a flavor of why it’s so important,” she said. “It might have to be associated with a sex star to make the public understand.”

Enforcement lacking

It’s been a vexing decade for campaign finance reform advocates. Partisan gridlock at the Federal Election Commission has meant the six-member board charged with enforcing campaign finance regulations has deadlocked in roughly a third of its cases – up significantly from a decade ago.

More than a year after Ravel’s departure, her seat remains open and the commission is working with a bare-minimum quorum of four members. All are serving expired terms. Members are appointed by the president – with recommendations from congressional leaders – and must be confirmed by the Senate.

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

Congress has been unwilling to touch the broader issue of campaign finance in a substantive way since it approved the bipartisan McCain-Feingold Act in 2002.

“We haven’t had effective enforcement at the Federal Election Commission in 10 years,” said Paul Ryan, a top attorney with the Washington-based Common Cause.

The Justice Department, meanwhile, has had a spotty record closing high-profile public corruption cases. The Supreme Court overturned the felony conviction of former Virginia Gov. Bob McDonnell, a Republican, two years ago. Prosecutors’ years long pursuit of Sen. Bob Menendez, D-N.J., ended in a mistrial last year.

In the most on-point historic example, the Justice Department failed to convict former senator and presidential candidate John Edwards, a Democrat, for a $1 million scheme to hide his pregnant mistress during the 2008 campaign.

Edwards relied on a defense that some of Trump's allies have embraced: That he paid the money to shield his family, not his political ambitions.

Lessons learned

In Cohen’s case, prosecutors said they were armed with reams of documents, text messages and phone records they said proved Trump directed the payments in the weeks before the election. They also said Cohen coordinated the payment with "one or more members of the campaign."

More: President Trump attacks ex-lawyer: 'I would strongly suggest that you don't retain services of Michael Cohen'

More: Michael Cohen doesn't want pardon from Trump, willing to talk to special counsel, lawyer says

More: Paul Manafort: What's next for the former Trump campaign head after guilty verdict?

And three key witnesses – the Trump Organization's longtime chief financial officer and two executives with the parent company of the National Enquirer – are said to have been granted immunity to cooperate with prosecutors in the Cohen case. The National Enquirer's parent firm paid $150,000 to buy and bury the story of Karen McDougal, one of the women who said she slept with Trump.

Jeff Tsai, a defense attorney and former federal prosecutor who worked on the Edwards prosecution, said it was rare for the government to have a case in which it alleges an illegal contribution that was coordinated with the campaign.

Another takeaway from the Edwards case, Tsai said, is that the government should only pursue the violations when prosecutors are certain they can prove them.

"The chief lesson is to be narrowly tailored," Tsai said.

The circumstances of the Cohen payments were also different: Trump accusers Stormy Daniels and McDougal were threatening to take their story public, while Edwards’ mistress, Rielle Hunter, was not.

Longtime Republican campaign finance attorney Jan W. Baran said the decision to pursue Cohen could be an indication that prosecutors are feeling more comfortable with cases involving in-kind contributions that involve both personal and political benefit.

Baran, a former general counsel for the Republican National Committee, said he believes the law is far from settled.

“These two campaign finance counts signal that the Justice Department wants to test drive again a theory that personal payments violate the campaign law,” Baran said.

Campaign confusion

Most campaign violations fly under the radar, despite polls showing voters oppose the way money influences elections. Campaign law is complicated. In fact, it’s so arcane that Trump himself this week made the argument that the campaign-finance felonies Cohen pleaded guilty to aren’t criminal acts.

In a Fox News interview that aired Thursday, Trump said he learned from watching "lawyers on television" that the things Cohen admitted to aren't "even crimes."

He insisted that no laws were violated because no campaign funds were used to pay Daniels and he later reimbursed Cohen for the payoff.

“They didn't come out of the campaign,” the president said of the funds. “They came from me."

Legal experts challenged Trump’s interpretation, noting that Cohen admitted providing the $130,000 to Daniels ahead of the election to influence the results. That far exceeded the $2,700 limit on what can individual could donate to help Trump win the general election.

But Richard Hasen, an election law expert at the University of California at Irvine said it’s the kind of argument that might sway voters given the complexity of campaign finance law.

“I would say campaign finance violations are seen as technical and difficult for the public to understand,” he said. “People don’t have a frame of reference.”

The Cohen plea may change that, at least for a little while, Ravel said.

She said the Department of Justice's aggressive prosecution in the case gives her hope.

“For a long time, those of us at the FEC who were frustrated with the deadlock hoped that DOJ would step into the breach,” she said, “and this is a sign of that happening.”

Contributing: Brad Heath