The following opinion piece was written by MapLight Senior Fellow Ann M. Ravel and originally appeared on Law360.com.
The day after his former personal lawyer pled guilty to tax and campaign finance charges in New York federal court last week, President Donald Trump tweeted that “Michael Cohen plead (sic) guilty to two counts of campaign finance violations that are not a crime.” And, he added, “President Obama had a big campaign finance violation and it was easily settled.”
Doubling down on this assertion, Alan Dershowitz, a former law professor, said that what Cohen did is “regarded as kind of jaywalking in the realm of things about elections,” and that every campaign violates campaign finance law.
Though campaign finance law has suddenly become a hot topic, with issues of foreign money interfering in the 2016 presidential election and payments to women to keep them quiet about indiscretions with the president to allegedly influence the election, few people understand the intricacies or even the purpose of campaign finance laws.
The first campaign finance laws in the United States were enacted by Congress in 1907 at the urging of President Theodore Roosevelt, who recognized the need for campaign finance reform in order to assure public trust in the electoral process. The Federal Election Commission, on its website, describes the body of campaign finance law as intending to limit “the disproportionate influence” of the wealthy and special interest groups on the outcome of elections by regulating spending and deterring abuse by mandating transparency of campaign finances.
Two federal agencies have the authority to enforce federal campaign law violations. The Federal Election Commission has solely civil jurisdiction, so it can only impose fines when it finds a violation of the law. Many of the cases penalized by the FEC are cases where there is strict liability for a violation of a relative clear reporting requirement, for example. The U.S. Department of Justice has jurisdiction to enforce criminal matters. The DOJ has established a threshold dollar amount of a violation that constitutes a criminal violation, and also must determine and prove that the violation was “knowing and willful” in order to meet the criminal standard for prosecution.
Turning to the claim that President Barack Obama’s campaign and many other campaigns have had similar violations to the Cohen plea, that is a completely erroneous assertion. As a former FEC chair and commissioner, I am aware of many campaigns, including President Trump’s campaign and President Obama’s campaign, that have been found by the FEC to be in violation of campaign finance laws. An FEC audit found that the 2008 Obama campaign had not filed in a timely manner required reports of more than 1,200 donations given near the end of the election cycle. Additionally, the Obama campaign was late returning excessive contributions to the donors that were over the $2,700 limit. All these violations, though serious, were found not to be intended to deceive but instead were errors by a campaign that raised over $1 billion and had thousands of pages of reports. The fine was $375,000, a very high fine for the FEC, but there was no finding that the violations were the result of serious and willful actions. These civil violations regard laws that are meant to assure timely disclosure to the public, but the violations are more akin to paperwork errors. They were not intended to deceive the public.
Cohen, on the other hand, pled guilty to having knowingly provided payments in order to influence the election. The contribution made by Cohen to one of the women is a violation of the law since it is in excess of the total limitation of $5,400 for both the primary and general election, and was purposely unreported. This payment to Stormy Daniels is considered to be an unreported “in kind” excess campaign contribution. Cohen also admitted that he caused American Media Inc. to make a $150,000 payment to another woman to silence her from speaking out about her alleged affair with Donald Trump. These contributions are prohibited by law as they are unlawful corporate contributions. According to the Cohen plea, both these acts were done knowingly and willfully. Consequently, they are charged as felonies.
Cohen also said in open court that he committed these crimes “at the direction” of Donald Trump. Trump’s reimbursement of Cohen for these contributions may potentially also be a crime, as it is illegal to contribute “in the name of another,” which is sometimes referred to as money laundering.
It is legally significant that Cohen stated that these arrangements were done for the purpose of influencing the election. It is not illegal to make payments to keep someone quiet. But if those payments are for the purpose of influencing an election, then they become a campaign contribution. These factual distinctions are of importance in campaign finance law, as seen in the outcome of the John Edwards criminal prosecution. Many commentators have said that the Edwards case, which arose from his run for president, is remarkably similar to what Cohen has acknowledged. Yet, the criminal prosecution of John Edwards for campaign violations ended in a jury acquittal of one charge and the inability of the jury to reach a verdict on the other five charges, which resulted in the DOJ deciding not to retry the case.
The facts in the Edwards case distinguish it from the Cohen case. The allegations in the Edwards matter were that he illegally received campaign donations from his 2008 finance chairman and from a friend, the heiress Bunny Mellon. The money was spent on private jet travel, hotels and housing for a mistress who had given birth to their baby. The DOJ alleged, as in the Cohen admission, that the money was a campaign donation because it was intended for the purpose of discrediting media coverage of the relationship to prevent negative impact to the campaign.
The jury acquitted on the most central charge, that Edwards funneled the illegal hush money to his mistress. Jurors concluded that there was no intent to break campaign finance laws, based on the testimony that the money was given after Edwards’ wife was looking through their financial records to confirm her suspicions about the affair. Since Edwards was aware of her suspicions and so could not continue to use their own money, he sought money from his friends to hide the expenses from his wife. The jury found that there was insufficient evidence that the money was obtained because of the campaign. And, there was no testimony provided in the trial showing that the money was intended for campaign purposes. As Edwards said when the case was dropped, he was “a sinner but not a criminal.”
Finally, with regard to the illegality of the corporate expenditures in the Trump campaign, many people believe that due to the U.S. Supreme Court decision in Citizens United, all corporate contributions to campaigns are legal. In fact, the Tillman Act, which was enacted in 1907 and prohibited corporations from contributing to national political campaigns, is still in effect today. Citizens United only struck down the ban on corporate expenditures made independently of the candidates or their committees, and specifically found independent expenditures to be constitutional. The rationale for the distinction was that independent expenditures cannot be corrupting of the candidates, while money given directly to the candidates or their committees can be corrupting, and thus is still illegal.
So, all of the acts that Cohen pled to are crimes. They are not the equivalent of jaywalking. They require willful violation of the laws that are intended to protect the fairness and integrity of elections, which is at the core of our representative democracy.
And, while Rudy Giuliani, the president’s lawyer, said correctly after Cohen’s plea, “[t]here is no allegation of any wrongdoing against the president in the government’s charges against Mr. Cohen,” in fact those charges and Cohen’s statements in open court raise serious questions about the president’s complicity and exposure to criminal charges.
There are still many facts that are unknown — for example, the true source of the money that was given to Stormy Daniels. Was it in fact paid through the Trump Organization, or did other sources anonymously provide that money to the organization or to Trump to provide to Cohen? Will there be more evidence that indicates that the president was aware of the intent to utilize the money provided to the women for the purpose of influencing the election?
Campaign finance laws are intended to preserve our democratic process. Full and fair investigations of the facts is required so that the public is confident of their unbiased application to the laws.
Ann M. Ravel is Senior Fellow at MapLight and a lecturer at Berkeley Law. She was nominated to the Federal Election Commission by President Barack Obama and joined the commission in 2013. She served as chair for 2015 and vice chair for 2014 before leaving in 2017.