In widely viewed congressional testimony last week, Cohen called out Trump for his campaign law “crimes.” He produced two checks from Trump reimbursing him for his illegal payments; the New York Times has viewed six more checks out of a total of 11. Some commentators saw these disclosures as “smoking guns” placing Trump in serious jeopardy of indictment by the U.S. attorney for the Southern District of New York or impeachment.
Trump said Thursday morning on Twitter that the payment “was not a campaign contribution, and there were no violations of the campaign finance laws by me.” And in fact, the truth is that unless new evidence surfaces that Trump knew he was acting unlawfully when he arranged for Cohen and AMI to secretly pay “hush money” to two women threatening to expose past affairs with him, the president is very likely to escape unscathed.
Trump’s salvation would lie in the legal requirement that, to be criminal, violations of campaign law must be “willful.” That means a prosecutor would have to prove beyond a reasonable doubt that Trump knew his conduct was unlawful but purposely went ahead with it anyway. Almost seven years ago, Abbe Lowell, a prominent Washington lawyer, exploited this requisite in his successful defense of former senator and presidential candidate John Edwards. (The trial ended in a hung jury.) In a case that bears comparison to Trump’s, Edwards was charged with accepting and failing to disclose large in-kind, indirect contributions from donors to hide his pregnant mistress from voters.
As it happens, Lowell’s office is two blocks from the White House, and he represents Trump’s daughter Ivanka and son-in-law Jared Kushner. The president would clearly benefit from chatting with him, if he has not already done so.
It’s true that Lowell also spent time challenging the prosecution’s contention that funds supplied by Edwards’s largest political donor and his campaign’s finance chairman were intended to promote his presidential campaign. Lowell argued that they were instead manifestations of personal friendship and therefore not subject to federal contribution limits. Lowell also had an advantage in that neither financier testified at the trial: One was too old and infirm, and the other had died. Furthermore, he skillfully impugned the credibility of Edwards’s principal accuser, a former close aide.
Justice Department guidance appears to rule out prosecution of a sitting president. But should Trump eventually face charges, he would have to surmount a, uh, higher wall than Edwards in claiming the payments were not political. Both Cohen and AMI have asserted — in prosecutor-approved documents — that Trump enlisted them to influence the 2016 election. There is a tape recording on which Trump discusses AMI’s plans. And other witnesses might emerge, too.
Trump’s team could certainly attempt to follow Lowell’s path by challenging witnesses’ credibility and emphasizing that Trump’s principal purpose was to protect his wife and avoid embarrassment (interestingly, Cohen referenced these additional concerns in his testimony). Trump’s lawyers could also cite the president’s longtime habit of spending money to squelch unfavorable publicity, including legal settlements, and a reported 2011 threat associated with one woman’s threat to go public.
Still, the most effective route toward creating “reasonable doubt” would be to show that Trump did not “willfully” break the law.
This contention was the bedrock of Lowell’s closing argument in the Edwards case. He began by telling the jury that “the most direct path possible” toward a verdict through the “boxes of evidence” was to concentrate on whether his client acted “willfully . . . with a bad purpose to disobey or disregard the law rather than in good faith.” Concerning “this important, critical case-deciding point,” he highlighted the testimony of two longtime veterans of the federal campaign finance system: the campaign’s chief financial officer and a former member of the Federal Election Commission.
Both agreed that the specific issue of whether donor payments for personal expenses of a “third party” associated with an affair were illegal in-kind contributions had never come up during their careers. The CFO also noted that after Edwards was indicted, FEC staff auditing his campaign’s financial reports raised no concerns about its failure to disclose the payments in question. In light of this testimony about the law’s silence on the matter, Lowell asked, how could Edwards be found to be deliberately violating the law?
Trump could have an easier time demonstrating that he did not act “willfully.” Unlike Edwards, who was well-acquainted with federal contribution limits as a former senator, vice-presidential nominee and presidential candidate, Trump was a political novice. His then-lawyer, Cohen, has acknowledged that he did not provide Trump with legal advice challenging his schemes. Trump’s campaign counsel (and former White House counsel) Donald McGahn was an election law expert and former FEC commissioner. But no evidence has appeared that Trump consulted him. Even if he had, Trump is most unlikely to have encountered opposition to his schemes.
At a July 2011 FEC meeting that concluded the audit of Edwards’s campaign, McGahn declared that the mistress payments alleged in the just-issued federal indictment were “not reportable” as contributions or expenditures. Finally, Trump’s defense could cite the failure of the Edwards prosecution as further evidence that the president had no clue his conduct was illegal. After all, a recent presidential candidate had escaped conviction for doing something similar.
Beneath the surface of this particular controversy lies our political system’s continuing failure to uphold and clarify federal campaign finance laws to prevent corruption and increase transparency. From “soft money” to “dark money,” the FEC has enabled large donors seeking to subvert campaign law. In the aftermath of Edwards’s 2012 trial, which revealed a major loophole, the commission offered no guidance concerning the circumstances in which a third-party payment for a candidate’s personal expenses (not just those for a mistress) would be considered a contribution subject to legal limits and disclosure.
That failure opened the way for Trump to push the envelope further. The president — any president, not just Trump — and Congress have the power to change this dynamic by renewing and revamping the moribund FEC or passing new legislation.
So far, they have all made common, bipartisan cause to stand idly by.