What a year this week has been.
Apparently, this week was an inflection point in Donald J. Trump’s presidency. Or at least that’s the talking point. The funny thing about Trump is that he has a habit of hitting each inflection point and then eating it for breakfast, lunch, and dinner. Asserting that John McCain is not a war hero was an inflection point. Firing Comey was an inflection point. And now, with his personal attorney Michael Cohen seemingly willing to “flip” on his former boss and implicate him in a federal crime, we have hit another inflection point.
Despite the (probably correct skepticism) from some, this time it feels different. It’s best to go through the Cohen deal, piece by piece, to realize the seriousness of Trump’s position.
For one, there are a host of people on the right (namely Alan Dershowitz but also Bradley Smith) who claim that Cohen’s campaign finance violations were not actually crimes. This is wrong. Trump himself made this argument in his interview with Fox News:
They weren’t taken out of the campaign finance, that’s the big thing. That’s a much bigger thing. Did they come out of the campaign? They didn’t come out of the campaign, they came from me.
Weirdly enough, Trump ended up admitting to a federal crime on national television. While it’s possible that if the money had come from the campaign Trump would have been in the clear, it is Trump’s admission that he made these payments to Stormy Daniels and Karen McDougal as a private individual that confirm it is a campaign finance law violation.
First, it has to be established what the purposes of the payments were. Cohen indicated in his plea that he made the payments “for the principal purpose of influencing the election.” It is clear from this statement — accepted by the SDNY and likely not by accident — that prosecutors were anticipating a potential argument from the Trump Administration that these were not campaign expenditures. The SDNY said that they have evidence to back up Cohen’s claim, which includes — but is surely not limited to — hard evidence, such as phone calls and text messages, as well as testimony from David Pecker. Recent reporting supports Cohen’s story, as the Wall Street Journal outlined that Cohen wasn’t all that interested in making the payments to Daniels until the Access Hollywood tape came out, indicating that Cohen (and Trump) were aware of the damage that a story about two of his affairs could do to Trump’s campaign.
Now that we’ve established the political nature of the payments, it’s clear Cohen and Trump violated the law in two respects (which is why Cohen pleaded guilty to the two counts):
1. Causing an unlawful corporate campaign contribution.
2. Making an excessive campaign contribution.
The first violation is related to 52 USC § 30118(a), which states:
It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office.
As has been widely reported and has now been confirmed, Cohen made the payments to Ms. Daniels and Ms. McDougal out of an LLC that he set up in Delaware. While LLCs are not always corporations in and of themselves, the FEC (usually) considers them to be corporations for purposes of campaign donations. So, Cohen is nailed on count one.
The “excessive” campaign donation law is pretty clear: Anything in excess of $2,700 (or in some cases, $5,400) is over the limit. The Cohen payments clearly violate this portion of the law, much like Dinesh D’Souza’s payments from a few years ago.
To rebut these two charges, the Right keeps citing to two other supposedly similar campaign finance violations: John Edwards’s violation in 2008 and Barack Obama’s violation, unearthed after an FEC audit in 2012. For one, Obama’s violation amounted to essentially nothing more than some late paperwork. The FEC assessed a fine and the Obama campaign paid it. As Michael Toner, a former FEC chairman, said at the time: “Overall, this is a very clean audit report for the Obama campaign. The FEC spent two years picking over $750 million in contributions and expenses and found one violation.”
The Edwards case is a little bit closer to Trump’s violation, but not by much. Paul Seamus Ryan took a closer look at the payments from Edwards’s campaign and found no similarity to Trump’s current predicament:
Edwards argued that the purpose of the payments was to hide his affair from his wife who was battling cancer at the time, not to hide his affair from voters. In other words, Edwards claimed the reason for the payments was personal and not political. Some commentators claim Edwards was vindicated, and that his case shows that his alleged activities would not amount to a crime. That’s wrong. The jury was unable to reach a unanimous conclusion on five of six counts Edwards faced, and acquitted him on a count related to a payment made after he had dropped out of the presidential race. The law is still a strong one that regulates all federal elections. The failure of Edwards’ prosecution boils down to weaknesses in some of the claims the government made and evidence against him.
Also, it should be noted that Edwards made these payments from his campaign, which resulted in him defrauding his donors (because obviously this isn’t where they expected their money to go to, but also because it wasn’t disclosed, much like Trump’s payments to Daniels and McDougal). The two donors in question were both unable to be called as witnesses, as one had passed away at the time of the trial and another was 101 years old. Ultimately, Trump and Cohen’s violation really stands out on its own; these are pretty crystal clear violations of campaign finance laws.
There has been some argument from Trump supporters that this plea is basically Cohen’s word against Trump’s, and Cohen can’t be trusted. This is problematic for two reasons. 1. There is a recording of Trump and Cohen discussing the payment to McDougal. 2. The SDNY actually said in the information that they have proof of what Cohen is saying:
The most obvious answer to questions surrounding Cohen plea is that prosecutors would not have allowed Cohen to plead guilty to things he was not actually guilty of doing. This is actually only half true: Sometimes prosecutors do not care whether or not you actually committed the crime you’re pleading guilty to. However, prosecutors would absolutely not state on the record that they have proof of Cohen committing these crimes after he pleaded guilty unless they actually had proof.
So, obviously the big question is: “What’s next?” It’s true, I think, that this is an inflection point. It’s just not clear if it’s the inflection point we’ve all been waiting for. What is clear: These investigations (both the Russia investigation and the investigation into Cohen) are probably not all that close to being completed, more evidence is going to come out, and none of it looks like it will exonerate Trump. Right now, Trump’s chief financial officer, Allen Weisselberg, has agreed to an immunity deal with the Feds, meaning he has admitted to his criminal liability in their investigation. Same goes for David Pecker, the head of American Media, Inc., the parent company of The National Enquirer.
These latter two developments are clear indications that the walls are closing in. Trump’s legal liability becomes more serious by the day, and most of this post leaves out the fact that he is still the subject of a criminal investigation by Robert Mueller.
Maybe this week isn’t really the beginning of the end of the Trump presidency, but it’s clear that the conversation should start happening sooner rather than later.