Former Election Commissioner: Cohen and Trump Didn’t Violate Campaign Finance Law

COMMENTARY Election Integrity

Former Election Commissioner: Cohen and Trump Didn’t Violate Campaign Finance Law

Dec 17, 2018 4 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.
The bottom line: Cohen was “persuaded” to plead guilty to an action that was not an actual violation of the law. Shannon Stapleton/REUTERS/Newscom

Trump-haters hoping the president’s former personal attorney, Michael Cohen, will provide the evidence needed to impeach the president and perhaps even “lock him up” are likely headed for a bitter disappointment. The Cohen guilty pleas are likely irrelevant to the fate of President Trump.

That’s because in my judgment – as someone who served for two years as a member of the Federal Election Commission – the campaign finance law violations Cohen pleaded guilty to committing, allegedly at Donald Trump’s direction, aren’t really violations.

If I’m right – that is, if Cohen didn’t really violate campaign finance law, despite his ill-advised guilty plea – then it would be impossible for Trump to have violated campaign finance law by directing Cohen to take a perfectly legal action.

Confused? That’s understandable, because the media lump all the charges Cohen pleaded guilty to together when explaining this complex case. But in reality, Cohen was sentenced Wednesday in U.S. District Court in New York City on several separate and unrelated charges.

Cohen was sentenced to three years in prison by a federal judge and was also ordered to pay almost $2 million in fines, restitution and forfeitures after earlier pleading guilty to multiple counts of business and tax fraud. Those crimes have absolutely nothing to do with Trump, but rather involve Cohen’s own business dealings.

In addition, Cohen was sentenced on his guilty pleas to violating campaign finance law on Trump’s behalf – an action that, as I will explain, I believe was not really a crime at all.

And finally, Cohen’s sentence included punishment for his guilty plea to making false statements to Congress regarding failed efforts to build a Trump Tower in Moscow.

The applicable federal sentencing guidelines for the crimes Cohen pleaded guilty to call for a prison sentence ranging from just over four years to just over five years.

But federal prosecutors in New York City said Cohen should receive some credit for his limited cooperation with Special Counsel Robert Mueller, who is investigating whether the Trump presidential campaign illegally conspired with Russia to help elect Donald Trump president.

The president has frequently stated that there was “no collusion” between his campaign or him and Russia. He has denied any misconduct on his part, calling the Mueller probe a “witch hunt” by “angry Democrats.”

It’s critically important to understand that the crimes Cohen was sentenced for Wednesday have not revealed any evidence relevant to the allegations of possible Trump campaign-Russia collusion that Mueller was appointed to investigate.

Cohen’s guilty plea to lying to Congress concerned his account of negotiations on behalf of the Trump organization to build a marquee property in Moscow – a deal Trump has been working on for 30 years, albeit unsuccessfully.

Cohen originally said those negotiations ended in January 2016 and did not involve members of the Trump Organization – including Donald Trump. But he now says the negotiations ended in June 2016 and that members of the Trump Organization – including then-presidential candidate Trump – were briefed on the talks.

Because Cohen lied to Congress, he is now paying the price for doing so, as he should. The real estate negotiations for a Trump Tower in Russia were perfectly legal, although the timing could have proven embarrassing to Trump’s presidential campaign.

Cohen would not have been pleading guilty in federal court on this real estate negotiation if he had simply told the truth. There are reports that Cohen had contact with high-level political officials in Moscow, including a representative of President Vladimir Putin’s press secretary, and the Trump Organization may have planned to offer Putin a $50 million penthouse in the Moscow property.

Was the 2016 election discussed in any of those meetings and did Russian officials obtain some kind of leverage against Trump through this real estate deal that was discussed but never came to fruition?

We don’t know, but there hasn’t been any information released publicly in the Cohen case (or any other case) that provides any insight into what happened at those meetings other than discussions of the real estate deal.

But now to the most important charge as far as President Trump is concerned: the campaign finance violation that Cohen pleaded guilty to.

Many campaign finance law experts and fellow former commissioners of the Federal Election Commission agree with me that Cohen’s did not commit an actual violation of federal law.

Cohen has stated he arranged hush-money payments to two women – adult-film actress Stormy Daniels and Playboy model Karen McDougal – to not make public their unproven allegations of extramarital affairs with Donald Trump years ago. Trump has denied the allegations.

It’s my belief as a former Federal Election Commission member that such payments were not “campaign-related” – and therefore the rules and regulations governing campaign contributions don’t apply.

In fact, the only time the Justice Department has ever tried to make such a claim before – against former Democratic presidential candidate Sen. John Edwards of North Carolina – the Justice Department lost.

Furthermore, the Federal Election Commission – an independent federal agency responsible for civil enforcement of campaign finance law – didn’t consider the hush-money donations to the Edwards campaign to be campaign-related expenditures when it audited the Edwards campaign.

The bottom line: Cohen was “persuaded” to plead guilty to an action that was not an actual violation of the law.

Convicting Donald Trump of a criminal campaign finance violation will be extremely difficult, if not impossible. Just as Edwards was found not guilty, the same is likely to happen to President Trump if he is charged while he is president or after he leaves the White House.

As for the claim the hush-money payments would be an impeachable offense, members of Congress would have to explain why prior cases in which campaigns like that of Barack Obama paid civil penalties to the Federal Election Commission for violations of federal campaign finance law were not grounds for impeachment.

It certainly is possible that Cohen and others have provided some kind of evidence to Mueller that will prove that the Trump campaign somehow colluded with Russian officials. But if so, this evidence has not yet been publicly revealed.

In sentencing Cohen, U.S. District Judge William H. Pauley agreed with the prosecution’s claims that Cohen was motivated by “personal greed and ambition.”

But nothing in the charges Cohen pleaded guilty to provides any evidence that the Trump campaign colluded with the Russian government to affect the outcome of the 2016 election, or that Trump violated campaign finance law. And even Trump’s bitterest opponents don’t claim he had any role in Cohen’s taxi business.

So while the headlines blare and Trump opponents line up on TV to say the Cohen plea could mean future criminal charges against President Trump and serve as grounds for impeachment, don’t be so sure.

This piece originally appeared in Fox News