President Trump tweeted Wednesday that two violations of election law that his former longtime attorney Michael Cohen pleaded guilty to “are not a crime,” comparing them to a “big campaign finance violation” by former president Barack Obama’s campaign.
“If you look at President Obama, he had a massive campaign violation,” Trump told “Fox & Friends.” “But he had a different attorney general and they viewed it a lot differently.”
Constitutional lawyer Alan Dershowitz, a Trump ally, also sought to dismiss Cohen’s admitted crimes, saying Tuesday night on Fox News Channel that what Cohen did is “regarded as kind of jaywalking in the realm of things about elections.”
But the Cohen and Obama cases are quite different. A case like Obama’s — which was a civil infraction — is much more common and less serious than a criminal cases such as Cohen’s, in which there was a knowing violation of election law that carries prison time, campaign finance experts said.
Cohen pleaded guilty Tuesday to eight criminal charges, including two campaign finance violations in which he directly implicated Trump.
Cohen said that ahead of the 2016 election, he arranged payments to two women to suppress their stories of alleged affairs with Trump. He told a federal judge that he did so in coordination with the then-candidate and in an effort to influence the election.
He admitted to committing two separate crimes that violated federal election law: He caused a corporation to make an unlawful contribution to the Trump campaign and he personally made an excessive contribution to the Trump campaign.
The first crime occurred when Cohen arranged to have AMI, the parent company of the National Enquirer, buy the rights to the story of Playboy model Karen McDougal for $150,000, according to court papers. AMI then shelved her story.
That payment served as an in-kind contribution to Trump’s presidential campaign, violating a ban on corporate donations to campaigns, prosecutors said.
The second violation occurred when Cohen paid adult-film star Stormy Daniels $130,000 in hush money days before Election Day. Cohen admitted to making the payment so that her story would not damage Trump’s campaign.
Prosecutors said that the $130,000 served as an excessive contribution to Trump’s campaign by Cohen, who under federal law was allowed to donate a maximum of only $5,400.
Trump asserted Wednesday that because the payments to the women were not made by his campaign committee, they did not break the law.
“They didn’t come out of the campaign, and that’s big,” he said on “Fox & Friends,” adding: “It’s not even a campaign violation.”
However, under federal campaign finance rules, a contribution is “anything of value given, loaned or advanced to influence a federal election.”
A “knowing and willful” violation of those rules — which Cohen admitted to — can lead to criminal charges.
Excessive in-kind contributions do not usually result in criminal prosecution, said Jonathan Biran, a partner at Rifkin Weiner Livingston and former prosecutor with the Justice Department’s public integrity unit.
“What sets this apart is the amount of the things of value — and also, one might argue, the importance of the issue that was the subject of these payments,” he said. “In other words, to prevent the surfacing of these allegations.”
Cohen’s case is similar to that of former presidential candidate John Edwards, who was indicted on charges of using illegal campaign donations to conceal an affair during the 2008 campaign. Edwards was acquitted on one count involving alleged illegal campaign contributions made after he dropped out of the race, and the jury deadlocked on five other charges.
“In both situations, the theory is that it may not be a traditional contribution, but it’s something of value that is given for the purpose of influencing an election — the definition of campaign contribution under the law,” said Justin Shur, a partner at MoloLamken LLP and a former deputy chief of the Justice Department’s public integrity unit, who litigated the Edwards case.
Obama’s 2008 campaign committee was fined by the Federal Election Commission for violating campaign reporting requirements in the weeks leading up to Election Day.
Under federal election law, campaigns must file special notices to the FEC of last-minute contributions of $1,000 or more that are received in the final weeks before Election Day.
In April 2012, the FEC released an audit of the campaign that found that the committee did not disclose the identities of the 1,312 donors responsible for nearly $2 million in contributions in the final weeks of the campaign.
Those donations made up one-quarter of 1 percent of the $778 million raised for his White House bid. The infractions found in the audit were relatively minor considering the volume of contributions, campaign finance experts said at the time.
“Overall, this is a very clean audit report for the Obama campaign. The FEC spent two years picking over $750 million in contributions and expenses and found one violation,” former Republican FEC chairman Michael Toner told Reuters at the time.
No other enforcement action resulted in a settlement with the Obama campaign, the FEC’s website shows. Another matter resulted in an alternative dispute resolution over excessive contributions that the campaign did not correct in the required time period, and it resulted in a $12,000 fine settlement with the 2012 campaign, which was paid in 2014.
The Obama campaign’s violation was a civil infraction of campaign finance law, which resulted in an administrative penalty.
Dan Petalas, former acting general counsel and head of enforcement at the FEC who signed the settlement agreement with the Obama campaign, said such infractions are far more common than criminal violations to which Cohen pleaded guilty.
Civil infractions often arise out of inadvertent paperwork errors, which are not uncommon for a presidential campaign that files fundraising reports that are thousands of pages long, Petalas said.
“There is no good-faith comparison of that sort of conduct with allegations — if proven true — that a candidate him or herself directed his agents to knowingly violate campaign finance laws,” as Cohen said Trump did, Petalas said.
“It is ethically and morally, entirely of a different character,” Petalas said.
Trump claimed Wednesday that the Obama campaign was treated differently in 2012 because there was a different attorney general leading the Justice Department. However, the Obama campaign penalty was levied by the FEC, which handles civil infractions, not the Justice Department, which prosecutes criminal violations of election law.