[EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”

Wed Aug 22 09:29:30 PDT 2018

Ned,

I think the offer from Lara Trump to Omarosa was legal: we'll pay you to
"work" for the campaign and you sign an NDA. The wages are disclosed as a
campaign expenditure and the individual is enticed to refrain from speaking
negatively about the candidate. NDAs are very common for campaign staffers
(though typically related to strategy and communication, not skeletons in
the closet) and hiring an "aide" or "field worker" or whatever won't raise
nearly as many flags (or implicate nearly as many felony statutes) as
creating a shell corporation to wire an unreported six figures to a
pseudonym for the purpose of influencing the election.

To Douglas Carver's point about ethics, however, does this
"faux-employment-for-silence" regime undermine the integrity of government
any less than secret wire transfers? I'm not so sure. Perhaps it would be
helpful to know how you distinguish "perverting the course of an election"
from regular old politics. The word "pervert" is defined as changing
something from its original course/intention. What is that original course
in the election context? An election with no lies, no exaggerations, no
cover ups, no dirty tricks? If so, that ship sailed a long time ago.
Perhaps the perversion you are referring to is not about legal standards
but about legal norms. Was Trump's behavior an outlier compared to standard
practice? I would say the offer to Omarosa was not, but the payment to
Stephanie Clifford was. Is that enough to justify articles of impeachment?
I'm more skeptical than Rick.

On a different note, I doubt whether most Americans understand that
impeachment is not the same as conviction or removal. I think if people
equated impeachment with "censure on steroids" there would be more support.
Actual removal is such an extreme remedy and may undermine the perceived
integrity of government more than the initial "perversion." Thus why I
think support for impeachment (likely understood as removal) remains below
45% ... though I guess we'll see in a few weeks when new polls account for
Cohen's allegations.

Doug

-----
*Douglas M. Spencer*
*Professor of Law & Public Policy*
University of Connecticut
www.dougspencer.org

*Visiting Professor, 2018-2019*
Harris Public Policy
University of Chicago

On Wed, Aug 22, 2018 at 10:39 AM Foley, Edward <foley.33 at osu.edu> wrote:

> Would there have been a way to lawfully disclose the existence of the
> payments without revealing, or signaling, their specific purpose?
>
>
>
> And whether effective or not in buying silence, what I’m trying to ask is
> whether it is unlawful for a presidential campaign to make a payment for
> the purpose of enticing an individual to refrain from speaking negatively
> about the candidate (in the hope that the voters won’t be persuaded by the
> negative thing the individual might say).
>
>
>
> [image: The Ohio State University]
> *Edward B. Foley *
> Director, *Election Law @ Moritz *
> Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional
> Law
>
> Moritz College of Law
> 614-292-4288
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *David A. Holtzman
> *Sent:* Wednesday, August 22, 2018 11:15 AM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates
> Donald Trump in a Felony”
>
>
>
> It wouldn't be "hush money" if it were disclosed.
>   - dah
> --
>
> On August 22, 2018 10:36:27 "Foley, Edward" <foley.33 at osu.edu> wrote:
>
> Rick & list members,
>
>
>
> Am I correct that the “hush money” payments themselves would not have been
> criminal conduct IF (1) made from the campaign itself using money received
> in compliance with contribution limits and (2) disclosed as
> campaign-related expenses?
>
>
>
> If so, I’m trying to evaluate whether Trump’s own culpability as alleged
> by Cohen should rise to the level of an impeachable “high crime or
> misdemeanor”.   In other word, if it ever comes to that, what should
> Senator Rob Portman (for example) do, on the facts as stated by Cohen
> yesterday if made the basis of an impeachment count by the House (assuming
> that Senator Portman endeavors to do the right thing under the
> Constitution, as some Republican Senators did in my judgment in acquitting
> Andrew Johnson even though they had the raw power to remove him)?
>
>
>
> Presumably, some campaign finance violations—even if intentionally
> criminal—do not rise to the level of impeachable offenses.  Assume a
> situation in which no “hush money” payments were involved, but a
> presidential candidate intentionally conspired with a wealthy donor to
> receive a contribution in excess of the statutory limits, and also the
> intentional conspiracy involved an effort to hide the illegally excessive
> contribution from the FEC.  Would that be enough to warrant removing the
> elected president from office?
>
>
>
> Does the Senate’s decision not to remove Bill Clinton from office count as
> a relevant “precedent” in this context?  To be sure, criminality in an
> effort to sway an election seems constitutionally more problematic (in my
> judgment) than criminality in an effort to protect one’s personal
> reputation (as arguably was the nature of Bill Clinton’s criminality).
> Especially because there is no mechanism to remove a president other than
> impeachment if there was criminally improper interference with the
> electorate’s choice on which candidate should win, I think an
> election-related crime should count more significantly for impeachment
> purposes than at least some other types of crimes.  Even so, it is not
> obvious to me that every election-related crime committed by a presidential
> candidate should automatically be viewed as a sufficient basis for
> impeachment and removal from office.
>
>
>
> Any input as I endeavor to think this through?  Thanks, Ned
>
>
>
> [image: The Ohio State University]
> *Edward B. Foley *
> Director, *Election Law @ Moritz *
> Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional
> Law
>
> Moritz College of Law
> 614-292-4288
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Rick Hasen
> *Sent:* Tuesday, August 21, 2018 8:23 PM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald
> Trump in a Felony”
>
>
> “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
> <https://electionlawblog.org/?p=100738>
>
> Posted on August 21, 2018 5:22 pm <https://electionlawblog.org/?p=100738>
> by *Rick Hasen* <https://electionlawblog.org/?author=3>
>
> I have written this piece
> <https://slate.com/news-and-politics/2018/08/michael-cohens-guilty-plea-directly-implicates-donald-trump-in-a-felony.html> for
> Slate. It begins:
>
> *For the first time since the Trump presidency began, President Donald
> Trump is in some real legal jeopardy, providing potential grounds for his
> eventual impeachment, if not indictment.*
>
> *Most people watching the investigations involving Trump and his orbit
> have been focused on whether Special Counsel Robert Mueller is going to
> bring charges related possible illegal coordination between the 2016 Trump
> presidential campaign and Russian government entities. But Tuesday brought
> news of a different kind of campaign collusion: between Trump and his
> personal lawyer, Michael Cohen. Cohen’s guilty plea to campaign finance
> violations related to hush money payments to porn actress Stormy Daniels
> and former Playboy Playmate Karen McDougal bring the president front and
> center in a conspiracy to violate federal campaign finance laws.*
>
>
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100738&title=%E2%80%9CMichael%20Cohen%E2%80%99s%20Guilty%20Plea%20Directly%20Implicates%20Donald%20Trump%20in%20a%20Felony%E2%80%9D>
>
> Posted in campaign finance <https://electionlawblog.org/?cat=10>,
> campaigns <https://electionlawblog.org/?cat=59>, chicanery
> <https://electionlawblog.org/?cat=12>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
> [image:
> /Users/rhasen/Library/Containers/com.microsoft.Outlook/Data/Library/Caches/Signatures/signature_64374683]
>
>
>
>
>
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