President Donald Trump seems to think campaign finance violations are not criminal violations of the law or are judged by a double standard. This belief is misplaced. While campaign finance violations are sometimes disposed of with administrative fines and consent decrees, such violations can easily rise to the level of a federal crime and be dealt with accordingly.
Trump offered his off-base legal theorizing by way of some disjointed thoughts on Michael Cohen‘s guilty plea. In a tweet sent at 9:37 a.m. on Wednesday, Trump claimed, “Michael Cohen plead [sic] 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!”
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
Again, the initial claim here is incorrect. Campaign finance violations are not always treated as crimes by the U.S. Department of Justice (DOJ), but that’s largely because campaign finance law is typically enforced and administered by the Federal Election Commission (FEC).
The FEC has exclusive civil enforcement jurisdiction over federal campaign finance law and is thus the primary agency dedicated to enforcing such laws. At the same time, however, the DOJ has concurrent criminal jurisdiction over more egregious campaign finance law violations. This may sound a bit confusing, but it’s really not. So, what’s the distinction?
In simple terms, it’s the difference between a mistake or negligence and a scheme or conspiracy. Both violations may result in similar outcomes but the road traveled to get there is what’s of the utmost importance. The legal standard employed to suss out the two forms of campaign finance law violations is that of willfulness.
Here, prosecutors have charged Michael Cohen with the crime of “knowingly and willfully” violating campaign finance law by “aggregating $25,000 or more during a calendar year,” in order to benefit the Trump 2016 campaign. And, on this point, Michael Cohen has agreed.
The basic law on point is codified at 52 U.S.C. 30116(b) and reads, in relevant part:
No person shall make contributions to any candidate, his or her authorized political committees or agents with respect to any election for Federal office that, in the aggregate, exceed $2,000.
i. The contribution limitation in the introductory text of paragraph (b)(1) of this section shall be increased by the percent difference in the price index in accordance with 11 CFR 110.17.
As noted in a previous campaign finance law analysis for Law&Crime, “As part of the compromise securing the [McCain-Feingold Act’s] passage, individual campaign contribution limits were increased from $1,000 per candidate per cycle to $2,000 per candidate per cycle–with the upper limits indexed to inflation in odd-numbered years (meaning those upper limits occasionally increase.)”
According to the FEC, for the 2015-2016 election cycle, individual contribution limits maxed out at $2,700 per candidate per cycle. In other words, Cohen’s $130,000 payment to Stormy Daniels for her silence equates to the crime of making an “excessive campaign contribution”–exactly $127,300 in excess of what federal election law currently allows.
Additionally, Cohen is charged with the crime of “causing an unlawful corporate contribution.” This federal law is codified at 52 U.S.C. 30118(a) and reads, in relevant part:
It is unlawful for 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 for any corporation whatever…to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors…are to be voted for…
Here, we’re talking about Cohen facilitating the payment of $150,000 to a woman widely believed to be Karen McDougal over similar issues of alleged sexual impropriety between herself and Donald Trump. For starters, this contribution was also far in excess of what’s allowed by law. But in this instance, however, Cohen enlisted the services of The National Enquirer publisher A.M.I. in order to make the deal go down.
Rather than simply cutting McDougal a check from his personal funds, Cohen arranged for A.M.I. to advance the payment instead–as part of a package deal which apparently included a series of Enquirer-centric perks for McDougal. But A.M.I. is a corporation and corporations are expressly prohibited from making such a “contribution or expenditure in connection with any election.”
Again, Michael Cohen has pleaded guilty to these crimes so a lengthy exploration of his mental state isn’t strictly necessary. Suffice to say, Cohen’s plea makes clear that the president’s longtime fixer arranged election-related payments far in excess of the federal contribution limits on two separate occasions.
Additionally, Cohen admittedly caused and facilitated an election-related “contribution or expenditure” from a corporation which is illegal no matter the amount in question. And in the eyes of federal prosecutors, this means Cohen knew what he was doing was wrong but he went and did it anyway. Cohen also said this was the case in open court.
In contrast, the Obama campaign-related fine referenced by President Trump in the tweet above stemmed from the fact that Barack Obama‘s 2008 campaign was so large and well-funded–it was the first billion dollar presidential campaign in U.S. history–that campaign finance staff simply couldn’t keep up with the workload. Therefore, Obama’s 2008 campaign finance staff filed notices late, were late to return certain unlawful donations, and initially got some dates wrong.
Those were violations, too, but because they were deemed to be the result of mistakes instead of a conspiracy to violate federal law, those violations resulted in a fine of $375,000. Furthermore, the difference between the two cases–and how authorities dealt with them–is easily discernible by simply looking at where in the process the violations occurred.
What it boils down to is: Michael Cohen and others conspired to evade campaign finance law and then made contributions which violated campaign finance law. Barack Obama’s 2008 campaign was mostly dinged because they were late filing paperwork about the lawful contributions they received–and to a lesser degree Obama’s 2008 campaign was sanctioned for receiving (and eventually returning) unlawful donations–as in the kind of contributions Michael Cohen and his co-conspirators made.
[image via Saul Loeb/AFP/Getty Images]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
Editor’s note: this article has been amended for clarity.
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