On Aug. 21, President Trump’s former attorney Michael Cohen pled guilty to five counts of personal income tax evasion on over $4 million, one count of making false statements to a financial institution to get a loan and two counts related to illegal “in kind” campaign contributions. The campaign contributions are related to the $280,000 in non-disclosure agreements paid to Karen McDougal and Stormy Daniels, both of whom claim to have had sexual encounters with President Trump prior to the 2016 election. The payments were later reimbursed by Trump but went unreported to the Federal Election Commission.
This prompted many on the left to celebrate and caused the Trump base to find every hypothetical reason under the sun to explain Trump’s innocence. So, let’s look at some precedents and still the muddy waters.
In 2004, the Democratic vice presidential nominee, John Edwards, was charged with taking and conspiring to take illegal contributions in excess of legal limits. Additionally, he was charged with lying about these events by not including the contributions in forms filed with the FEC. The contributions went to his mistress Rielle Hunter, with whom he had a daughter. The government claimed the payments counted as campaign contributions because Edwards was in the middle of a campaign while trying to conceal his affair in this manner. Edwards said the hush money was to conceal the affair from his wife. The case resulted in zero convictions.
More recently, Barack Obama paid a $375,000 fine for concealing $2 million in illegal campaign contributions in the weeks before the 2008 election, which is among the largest penalties ever handed out by the FEC. The lack of evidence proving that Obama knew about the crime resulted in his case not being treated as a felony; however, Cohen’s case is different.
A few months ago, Cohen claimed payments had no relation to the campaign, but now he claims that he was directed by Trump to make the payments “for the principle purpose of influencing the election.” However, it’s hard to prove that Trump had criminal intent.
The FEC makes it illegal to make contributions exceeding $2,700 per election to a presidential candidate or for the candidate to accept contributions in excess of that amount. This rule also applies to corporations — which is important, considering Cohen formed corporations to transfer the hush money. The law does not impose a dollar limit on expenditures by candidates themselves; however, it is illegal to fail to report contributions and expenditures.
With all that laid out, in a legal sense, Trump won’t be touched. The FEC applies what is called the “irrespective test,” which asks the following: Irrespective of the campaign, would the money have been spent? This is Trump’s best defense given Trump’s long history of NDAs with women.
Moreover, former FEC chairman Bradley Smith says that for a payment to constitute as a campaign expenditure, “it has to be something that exists only because of the campaign and solely for that reason.” That burden of proof is hard to overcome.
Finally, the president won’t be indicted nor impeached. The reason for the former is that a sitting president can’t be indicted because he is the head of the executive branch, and the reason for the latter is that impeachment requires “high crimes and misdemeanors,” for which there is no congressional consensus.
However, the effect this has on the midterm elections, I think, will not be good for Republicans.
Reagan Meredith is a junior political science major from Monroe, Louisiana.
