This article has been updated.
In a Manhattan courtroom Tuesday, President Trump’s former attorney Michael Cohen described how, at Trump’s direction, he worked with the head of a media company in the summer of 2016 to bury a story about an alleged extramarital affair between Trump and former Playboy model Karen McDougal. Cohen also described having been instructed by Trump to bury a story about another alleged affair with adult film actress Stormy Daniels. Both efforts, Cohen said, were “for the principal purpose of influencing the election.”
Cohen’s admission came as he admitted guilt in federal crimes associated with those actions. In the first case, he admitted to having willfully caused an illegal corporate contribution, by facilitating a payment by the National Enquirer’s parent company to McDougal. In the second, he himself made an illegal contribution by spending $130,000 to keep Daniels quiet. The judge to whom Cohen made his admissions explained the severity of the crimes: In each case, the maximum penalty was five years in prison and fines of up to $250,000.
Legal experts who spoke with The Washington Post were explicit about the implications of Cohen’s admissions: If Cohen’s assertions about Trump’s role in the coverups is true, Trump himself is implicated in the commission of federal crimes. Trump and his allies have accused Cohen of lying, but it’s important to note that Cohen’s admissions came under oath in a court of law, with an agreed-to plea deal probably limiting his possible prison time to a little over five years, which would be at risk if he offered false testimony.
As might have been predicted, Trump railed against the Cohen assertions in tweets Wednesday morning. Specifically, the president lifted up an argument that he probably heard while watching “Fox and Friends.”
It’s a bit baffling that Trump would assert that criminal charges accepted by Cohen aren’t a crime. Perhaps he’s arguing that the alleged crimes didn’t occur or that prosecutors crafted their charges in a way to maximize Cohen’s exposure to legal risk. It’s not clear — but neither is true.
But let’s focus on the second part of Trump’s assertion, that Cohen’s charges and his actions fall into a big bucket of “campaign finance violations” that also includes violations that President Barack Obama was found to have committed. It’s a very Trumpian bit of whataboutism, waving away something severe that Trump or a Trump ally did by pointing out something minor that one of his political opponents did.
It’s certainly true that both Cohen’s admissions and the Obama campaign did things that were “campaign finance violations” in the same way that your lifting a candy bar from a convenience store as a kid and what Bernie Madoff did are both “stealing.” Which isn’t to say that the Obama campaign’s violations weren’t serious. It’s just to note that broad legal terms can cover a variety of actions.
So what did Obama do? Well, Obama didn’t do anything, really. His campaign — Obama For America — failed to report 1,300 contributions within 48 hours as required by law. It also received some campaign contributions that exceeded allowable limits from a donor for a campaign cycle and others that had incorrect dates. In total, the contributions at issue amounted to about $2 million, and the campaign paid $375,000 in fines.
What Trump is alleged to have done is to have personally instructed his attorney to facilitate an illegal contribution by a corporation with the goal of burying a negative story before the campaign and, in another case, having that attorney make an illegal payment to hide another damaging allegation. Unlike the Obama example, the violation was allegedly intentional. Unlike the Obama example, Trump and Cohen then proceeded to lie about what took place for months — until Cohen’s admission in court.
Some additional context that will shed light on the difference between what Trump did and what the Obama campaign did. A few weeks after the 2016 election, the Trump campaign also paid a fine for improperly handling campaign contributions. About 1,100 donations made to Trump’s campaign violated campaign finance laws, including donations that exceeded the allowable limit in a year.
How common are such contributions? Trump’s former attorney John Dowd made contributions to Trump’s 2020 reelection bid in excess of legal limits earlier this year. Trump’s former attorney. A failure to respond to the improper donations, a Federal Election Commission letter to the Trump campaign said, “could result in enforcement action.”
Trump recorded an interview with “Fox and Friends” host Ainsley Earhardt on Wednesday in which he reiterated his assertions about Obama.
“It’s not even a campaign violation,” he said. “If you look at President Obama he had a massive campaign violation. But he had a different Attorney General and they viewed it a lot differently.”
The implication is that Attorney General Jeff Sessions allowed charges to be brought against Cohen while Obama’s attorney general gave him a pass. That’s obviously nonsense. The difference in treatment is a function of the difference in what actually happened.
On Fox News Tuesday night, Trump defender Alan Dershowitz told host Tucker Carlson that violations like the one to which Cohen admitted guilt were “regarded as kind of jaywalking in the realm of things about elections.”
“Every administration violates the election laws; every candidate violates the election laws when they run for president,” Dershowitz added. “Usually they pay a fine or something like that.”
This is the Madoff-candy-bar equation from earlier. While many campaigns do end up violating campaign finance laws, often because of the number of contributions coming in during an election, it’s by no means the case that the allegations about Trump and Cohen are run-of-the-mill. There are often violations of the law, just as there are often violations of the rules at summer camps.
That doesn’t mean, though, that horror-movie villains working their way through each cabin is just part of a standard camp experience.
This article was updated with Trump’s comments to Earhardt.