The guilty plea and subsequent sentencing of Michael Cohen for crimes, including campaign finance violations he claims President Donald Trump “directed,” has led to talk that Trump is basically an unindicted co-conspirator who can face charges as soon as he moves out of the White House. A new post on the Yale Journal on Regulation’s Notice&Comment blog, however, argues that is not necessarily the case.
University of Iowa Law Professor Andy Grewal points out two problems with the Trump-is-guilty theory in the post. The first is that we don’t know what Trump’s state of mind was when he gave the directions—if he gave them at all.
“To demonstrate that [Trump broke the law], the SDNY would need to show that Trump knowingly and willfully directed Cohen or others to violate the law,” Grewal says, referring to federal prosecutors in the Southern District of New York. They would need to prove that Cohen’s claim that Trump directed him is true, and that such direction was “knowingly” in violation of the law.
Right now, the only evidence we’ve seen of Trump’s direction is Cohen’s admission. Prosecutors referred to this direction in their sentencing memo, but Grewal points out that this does not necessarily mean that they have corroborating evidence of this.
Even if they did, however, “a person criminally violates campaign finance law only if he knows that his behavior is unlawful,” Grewal notes, so if Trump thought that he was on the right side of the law in directing the payments, he would not be guilty of a violation.
The second issue is whether the hush payments should truly be considered campaign contributions in the first place. Cohen didn’t fight prosecutors on this issue, opting to plead guilty, but Grewal doesn’t think the question is so easily answered.
The professor mentions that “there are strong arguments that hush money payments, as a matter of law, are never campaign contributions.” These arguments are based on the idea that “third-party payments will not qualify as campaign contributions if they ‘would have been made irrespective of the candidacy.'”
That means that if the payments would have been made even if Trump hadn’t been running for office—to protect his family or business, for instance—then they arguably would not be campaign contributions.
This is similar to what Trump attorney Rudy Giuliani said over the weekend, when he claimed that even if helping the campaign was a reason for the payments, the payments also had a non-campaign purpose.
UC-Irvine Law Professor Rick Hasen didn’t go for that theory, referencing a similar case involving former presidential candidate John Edwards, who was ultimately acquitted for violations related to money paid to his mistress.
“This came up in the Edwards case and the judge rejected it in favor of a test looking at the primary purpose,” Hasen told Law&Crime. “I think a court would reject Giuliani’s idea.”
Grewal notes that the SDNY sentencing memo in Cohen’s case “follows the approach advanced in the failed John Edwards prosecution,” but said that the Cohen case is distinguishable from the Edwards one.
Trump himself weighed in on the Edwards case when it was going on in 2012. Interestingly enough, he said he had spoken to lawyers about it and didn’t think the prosecution had a strong case—which turned out to be correct. At the same time, however, he said he didn’t believe Edwards’ story about not having knowledge regarding the payment.
[Image via Olivier Douliery-Pool/Getty Images]
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