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

Wed Aug 22 12:50:24 PDT 2018

Coordinated expenditures are the legal equivalent of contributions, and are subject to both hard money contribution caps and disclosure requirements. Corporations, as of now, continue to be prohibited from using general corporate revenue funds to make contributions to candidates and candidate committees.

Loans to candidates are not subject to contribution limits as long as made at fair market terms, but are required to be disclosed. Presumably, if a corporation was going to repay a loan on behalf of the candidate it would have to do so in accordance with contribution restrictions, which, as noted above would be subject to caps,  corporate contribution bans, and disclosure requirements.

On Aug 22, 2018, at 3:09 PM, Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:

I haven't been able to keep up on all of this, but I gather the alleged crime is failure to disclose the payments, rather than the actual making of the payments, which may not have been a crime. Is that right?

Focusing only on the question whether the making of the payments may have been a crime to which Cohen pled guilty:

If Trump instructed Cohen to make the payments as his agent (with the promise of reimbursement that is inherent in the agency relationship and perhaps was made explicitly), the payments would be permissible candidate expenditures (even if treated as campaign expenditures) under Buckley, wouldn't they? Campaign expenditures are always or almost always done through agents, aren't they, like advertising agencies that create and place ads? Must a candidate prepay the agents?

Or is there an argument that these were expenditures made by Cohen, not as Trump's agent, but on his own and coordinated with Trump as a candidate?

A federal judge has an obligation, I think, before accepting a guilty plea, to hear from the defendant a statement of the facts that support the plea. For an interesting discussion of the lawyer's obligations, see https://www.stroock.com/siteFiles/Pub1021.pdf (which begins with a discussion of guilty pleas entered by innocent defendants in foreign countries). If I'm right, does the judge also have an obligation to consider whether the facts that are admitted actually show that the defendant committed a crime (i.e., that the payments were illegal campaign expenditures or that failure to disclose was a crime)?

Put another way, can a defendant plead guilty to a crime on the basis of admitted facts that do not constitute the crime?

Sorry for not being more up-to-date (and certainly not being conversant with federal criminal practice). Perhaps these questions are nevertheless of general interest.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Wed, Aug 22, 2018 at 8:15 AM, David A. Holtzman <d at lavotefire.org<mailto:d at lavotefire.org>> wrote:

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<mailto: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

[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<mailto: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<mailto: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.

<image004.png><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>

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