« I never directed Michael Cohen to break the law. »
Donald Trump’s not the only one asking this question, although he has the most self-interest in asking it. “I never directed Michael Cohen to break the law,” Trump started in laying out his case on Twitter, and then argued that not all the acts to which Cohen pled guilty should have been crimes in the first place. Trump took aim at his biggest legal liability so far — the payoffs that kept his former paramours from talking publicly about his infidelities. How could those possibly be campaign-finance violations, especially in a criminal context?
I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called “advice of counsel,” and a lawyer has great liability if a mistake is made. That is why they get paid. Despite that many campaign finance lawyers have strongly……
— Donald J. Trump (@realDonaldTrump) December 13,2018
….stated that I did nothing wrong with respect to campaign finance laws, if they even apply, because this was not campaign finance. Cohen was guilty on many charges unrelated to me, but he plead to two campaign charges which were not criminal and of which he probably was not…
— Donald J. Trump (@realDonaldTrump) December 13,2018
….guilty even on a civil basis. Those charges were just agreed to by him in order to embarrass the president and get a much reduced prison sentence, which he did-including the fact that his family was temporarily let off the hook. As a lawyer, Michael has great liability to me!
— Donald J. Trump (@realDonaldTrump) December 13,2018
Former FEC commissioner Brad Smith raises the same question at National Review. There are plenty of ways in which candidates attempt to influence voters, but not all of them require FEC reporting. The way that campaign finance laws have been interpreted traditionally, Smith argues, is that the expenditures have to relate to explicitly campaign-related events and messaging:
To this intuitively obvious fact — very few people would think paying hush money is a legitimate campaign expenditure — those eager to hang a charge on Mr. Trump typically respond that he made the payments when he did because of the looming election. That may be true, but note that the same is true of the entrepreneur, who instructs his counsel to settle the lawsuits pending against him. Further, note that in both cases, while the candidate has no legal obligation to pay at all, the events that give rise to the claim against him are unrelated to the campaign for office. Paying them may help the campaign, but the obligations exist “irrespective” of the run for office. Mr. Trump’s alleged decade-old affairs occurred long before he became a candidate for president and were not caused by his run for president.
Further clinching the case, in writing its implementing regulations for the statute, the Federal Election Commission specifically rejected a proposal that an expense could be considered a campaign expenditure if it were merely “primarily related to the candidate’s campaign.
