The Cohen plea and the Daniels payments: not even a crime
Were Trump’s payments to Stormy Daniels via Michael Cohen a crime of any sort? Bradley A. Smith at National Review says “no”:
…the law — following our common sense — tells us that the hush-money payments outlined by the U.S. Attorney are clearly not campaign expenditures. There is no violation of the Federal Election Campaign Act.
To reach the opposite conclusion, the U.S. Attorney is placing all his chips on the language “for the purpose of influencing an election.” Intuitively, however, we all know that such language cannot be read literally — if it were, virtually every political candidate of the past 45 years has been in near-constant violation…
So what does it mean to be “for the purpose of influencing an[] election”? To understand this, we read the statutory language in conjunction other parts of the statute. Here the key is the statute’s prohibition on diverting campaign funds to “personal use.” This is a crucial distinction, because one of the primary factors separating campaign funds from personal funds is that the former must be spent on the candidate’s campaign, while the latter can be used to buy expensive vacations, cars, watches, furs, and such. The law defines “personal use” as spending “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” So a candidate may intend for good toothpaste and soap, a quality suit, and a healthy breakfast to positively influence his election, but none of those are campaign expenditures…
…Mr. Trump had many valid, non-electoral reasons for trying to keep these allegations quiet, most notably family harmony, protecting family members (especially his young son, Baron), and preserving his future viability as a television personality in case he lost the election…
…Michael Cohen is pleading guilty to something that isn’t a crime. Of course, people will do that when a zealous prosecutor is threatening them with decades in prison. But his admissions are not binding on President Trump, and Trump should fight these charges ferociously.
Many Americans have convinced themselves that Trump is a uniquely dangerous and bad man, such that any available tool should be used to expel him from office. But in that way lies the bigger threat to our democracy and rule of law.
And who is author Bradley A. Smith? Oh, just a former chairman of the Federal Election Commission. So hey, what does he know about campaign finance law?
Here’s another article that says much the same thing, but adds this:
In Buckley v. Valeo, the Supreme Court determined that there had to be some limits placed on what could be considered “for the purposes of influencing” an election and thus determined it could be applied only to electoral statements that urged voters to expressly advocate for or against a candidate. If statements did not have those words of express advocacy – clear statements of support or opposition to named candidates – then they cannot be considered expenditures. Not publishing a story has no content – it cannot contain express advocacy – and thus cannot be an expenditure subject to the FECA.
Furthermore, no federal court has ruled that not influencing an election constitutes influencing an election. The federal government tried that theory once before, when Senator John Edwards had help supporting his mistress to keep his affair quiet…[T]his creative legal theory by the prosecutors has never previously been successfully used against anyone during FECA’s 45-plus years in existence…
Cohen probably took the plea bargain because he was threatened with a long prison sentence and financial impoverishment on the many financial and tax charges unrelated to any dealings with President Trump. On Wednesday, Cohen was sentenced to three years, which was a pittance compared to the likely threatened decades of imprisonment.
This is what the entire prosecution of Cohen was about in the first place: getting him to make allegations that would implicate Trump in return for leniency. The prosecutors were no doubt hoping for something more against Trump than they actually got, but they had to make do with what they had, and if they had to twist their legal reasoning into pretzels to do so, they were up to that task.
No court has to buy it, either, because they are working in the court of public opinion and the plan is to justify an impeachment.
“No court has to buy it, either, because they are working in the court of public opinion and the plan is to justify an impeachment.”
Exactly.
Among other things, I am not aware of any evidence that the story told by these women includes any evidence. The porn actress (why are they always called “stars?”) had a photo at a golf tournament. I am unaware of any evidence of other contact.
The Playmate alleges, as I understand it, months of an affair. Its there any evidence ? Messages ? Hotel records ?
To my mind this whole thing was blackmail, which I think is still illegal.
This is what the entire prosecution of Cohen was about in the first place: getting him to make allegations that would implicate Trump in return for leniency.
which is why i put that up way ago when you posted before on this..
now its relevant.. it was relevant then, but first you needed someone anointed to say it
The man leading Cohen’s prosecution is Robert Khuzami. As far as I know, he has no history of politically-motivated prosecutions.
He seems like a a basic Republican and the complaints against him fall under basic complaints against Republicans: a little weak on wall st, a little too strong on terrorism.
But they did find more…much much more.
I think since the Feds went after John Edwards, their hands were tied…they had to go after Trump.
I don’t think the Ds care if they get as far as impeachment…the goal is to continue to de-legitimize the Trump presidency. I reckon that’s the “court of public opinion” the Boss is talking about here…and she’s correct as usual.
I am more confident than ever that they are overreaching and will find the results of that less palatable than they hoped.
Oh…edit is working!
But they did find more…much much more.
Delusions die hard.
Manju:
Sometimes you are quite the humorist.
Yes, the prosecutors didn’t want to do this—but their hands were tied because they had to be consistent with the Edwards prosecution that failed to establish the legal principle at all.
Funny material you got there.
Plus—we’re talking about the Stormy Daniels payments case the prosecutors are trying to make against Trump. The only thing Cohen gave them about Trump was the non-crime that is the subject of this post. They found much more against Cohen to charge Cohen with, not against Trump.
Manju:
Oh, and Robert Khuzami’s political affiliation; is not at all clear. He has worked for and was appointed by both Democrats and Republicans. However, whether or not he is a Republican—which is unknown, as far as I can tell—it is irrelevant. Surely you must know, unless you’ve been on planet Xenon since some time in 2015, that plenty of Republicans hate Donald Trump and would dearly love to “get” him.
In addition, most prosecutors love to get big fish in general.
And I have little doubt that most of the lawyers under Robert Khuzami who have worked on the Cohen case detest Trump. The vast majority of lawyers are Democrats, and the vast majority of lawyers working in NY are even more likely to be Democrats.
manju couldn’t wait to open his Christmas presents: the orange wig, round red nose, and the huge shoes. Does the flower on his lapel shoot water too?
Artfldgr:
Just about everyone (including me) knew from the start that those out to get Cohen were really out to get Trump. I wrote that at the outset, for example here and here. Those were written by me when the case began with the raid on Cohen’s office.
The Republic is on shakier grounds than most of us realize.
And that is not due to Donald Trump, who in two years has done more to benefit the USA than all of the sleaze-bucket living Democratic former presidents combined. The Democrats and RINOs are well advanced in their efforts to turn the USA into an economic colony of communist China.
The multiple grave crimes by the other side are ignored.
Why cannot Trump let loose the DOJ dogs of war by giving precise commands to that Department’s head honchos? Call them into the Oval Office, and fire all who demure, immediately. Keeping those critters in place harms him, in no way helps him.
The Dems want war? Give them war, then, The Donald.
Cicero, a great Oration. But nothing still happens against the Dems and Never Trumpers. Except the demise of some third rate rag.
“Call them all in the Oval Office and fire all who demure” Cicero
Wouldn’t that be great?
Until that is when the immediate reaction occurred with the media screaming bloody murder accusing Trump of acting as a dictator and every Congressional DemocRat and RINO fully on board with impeachment and conviction. However just and deserved such an action by Trump would be, it would hand his enemies the perfect rationale/excuse to impeach and convict him.
Most Americans have no idea how deep the rot goes nor how treasonous the Left, gullible their liberal enablers or how apathetic are non-voters.
In 2006, the Voter Eligible pop. of the US was 207, 643,594… Trump received just under 63 million votes and 55.7% of registered voters bothered to vote.
The brutal truth is that the majority of Americans don’t deserve the liberties they’ve been bequeathed and stand an excellant chance of losing them. “A Republic, if you can keep it” Perhaps Socrates and Plato were right, humanity is simply incapable of governing itself wisely. “A person is smart. People are dumb, panicky, dangerous animals and you know it” ‘K’ – Men in Black
Geoffrey: Wise man, “K.”
Also a very good (entertaining) movie.
Despite anti-Bug bigotry.
Manju:
You’re right. That Robert Mueller is one hell of a prosecutor! After nearly two years and $40 million, they’ve managed to find out that Paul Manafort evaded taxes and laundered money for some Ukranian kleptocrats five or six years ago, that Michael Cohen is a sleazebag, and that there are some Russians who will never see the inside if a US courtroom who did something, maybe bought $150,000 of Facebook ads. Oh yeah, and they entrapped LTG Flynn into lying. Unless he didn’t.
Now, that’s some prosecutorial achievement!
P.S. When Mueller’s gang indicted those Russians, they were totally surprised and dismayed to find out one of the companies indicted hired a US lawyer who showed up and pled them not guilty. Anybody want to bet the charges against that company will be dismissed? (Anyone but parker, he doesn’t pay his bets.)
One wonders, at least I do, whether a judge, who one assumes knows the law, would let someone plead guilty to something that is not a crime.
Every man for himself, the rule of law against all. This will not end well. Prepare accordingly, or be defenseless victims. Better to die defending liberty, or die in the gulag. Fool believing in the rule of law is possible or waking up to the lawlessness of those who decide what is the rule of law.
Taxing the remittances is a good way but also make any donation to Go Cund Me to build a wall a tax credit
A lot of us are waiting to see what Judge Sullivan does.
He has an enormous responsibility and I wonder if he is up to it.
Too bad he is 71. He might make a good USSC Justice.
Woke up today hoping the Flynn plea would get tossed and he would walk out of court a free man. But Flynn refused, more than once after being asked by Sullivan, to change his plea. Then Sullivan bought up treason on the Turkey front.
Didn’t see that coming.
Flynn was his own worst enemy in all this. After today, I’m even starting to give him low marks for brains. What’s his reason for not accepting the judge’s offer?
Did he suspect a trap? What does Mueller have on him?
What was the judge’s offer ? I saw none.
Ace has nothing about it.
The Clinton-appointed judge, Emmett Sullivan, claimed that Flynn’s suggestion that the FBI misled him (which it, you know, did) cast doubt on Flynn’s acceptance of culpability. The not-so-veiled threat from the judge is that if Flynn wouldn’t repudiate his previous complaints about the FBI, he’d toss out the plea deal and sentence Flynn more harshly than the plea called for.
That was his “offer?”
Flynn was his own worst enemy in all this. After today, I’m even starting to give him low marks for brains.
Yeah, decorated flag rank officers are idiots and need to go to school with random combox denizens.
see Yancey’s theory on the Flynn refusing to ditch his plea bargain — it’s complex
https://www.thenewneo.com/2018/12/18/somewhat-confusing-messages-from-judge-sullivan-in-the-flynn-hearing/#comment-2416059
See Dyer here for another possible wrinkle in the case
https://libertyunyielding.com/2018/12/18/judge-orders-original-flynn-302-made-public-in-redacted-version-as-usual-it-exposes-what-the-fbi-was-doing/