[EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
Lori A Ringhand
ringhand at uga.edu
Fri Aug 24 11:29:46 PDT 2018
I think any conversation a proposed disclosure distinction that turns on Trump’s “privacy” needs to take into account the full situation here. No one is compelling Trump to disclose personal facts. Rather, there are two women, *whose story this also is* who want to tell it, and Trump has chosen to pay them not to. It is far from clear, to me, that we would want to construct campaign laws to shield from public disclosure that a presidential candidate has put himself in that situation.
Sent from my iPad
On Aug 24, 2018, at 1:41 PM, Richard Winger <richardwinger at yahoo.com<mailto:richardwinger at yahoo.com>> wrote:
Not every candidate pays off individuals to keep them silent.
Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
________________________________
From: "Smith, Brad" <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
To: Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>
Cc: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Sent: Friday, August 24, 2018 10:14 AM
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
But not every candidate has trumps personal resources. I don't think you can have a law that applies to trump but not to most candidates.
Brad Smith
Sent from my iPhone
On Aug 24, 2018, at 12:22 PM, Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>> wrote:
Brad,
Your Reason piece suggests that a candidate is put in a bind with regard to expenditures that are personal — so that they can’t be paid with campaign funds — and also made to influence the election, so that campaign spending regulations would apply. As you put it, Trump’s campaign faced a dilemma: “It could pay with funds from outside the campaign, risking prosecution for failing to use campaign funds or file reports. Or it could pay with campaign funds, risking prosecution for an illegal diversion of campaign funds to personal use.”
The difficulty I have with that argument is that Trump could have paid the hush money using his own funds (not the campaign’s and not his corporation’s money) without violating the law. Disclosure could be required, but the making of the payments, even if seen as campaign expenditures, could not be prohibited (at least not by campaign finance laws). I suppose that’s a problem for someone who would have to borrow the money in order to make the payments, because the loan could be seen as an illegally large campaign contribution. That doesn’t seem to have been a dilemma that Trump faced.
With regard to filing reports, Trump could have filed the reports under protest, so to speak, not waiving any argument that they weren’t campaign expenses, to the extent that might matter.
If there were legitimate privacy concerns, I suppose Trump could have brought an action (maybe a declaratory relief action combined with an application for a TRO, all filed under seal?) arguing that disclosure wasn’t required. Is that right?
Mark
Prof. Mark S. Scarberry
Pepperdine Univ. School of Law
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
Sent: Friday, August 24, 2018 6:20:13 AM
To: Election Law Listserv
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
I'm told the link below was broken. Don't know why that would be so, but here is link to Reason piece, again. https://reason.com/archives/2018/08/23/trumps-campaign-finance-catch-22
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Smith, Brad [BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>]
Sent: Thursday, August 23, 2018 9:29 PM
To: Election Law Listserv
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
I also published a piece on the issue at Reason: https://reason.com/archives/2018/08/23/trumps-campaign-finance-catch-22.
Brad
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Smith, Brad
Sent: Thursday, August 23, 2018 9:27 PM
To: Election Law Listserv
Subject: RE: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
My take was in the Washington Post this morning. For anyone interested, the link is https://www.washingtonpost.com/opinions/those-payments-to-mistresses-were-unseemly-that-doesnt-mean-they-were-illegal/2018/08/22/634acdf4-a63b-11e8-8fac-12e98c13528d_story.html?utm_term=.2fdad3abe60f
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Roberts, Brian E [roberts at utexas.edu<mailto:roberts at utexas.edu>]
Sent: Thursday, August 23, 2018 9:55 AM
To: Election Law Listserv
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
Isn’t this discussion moot? No one, least of all Donald Trump, thought he would actually win the election, so clearly these payments were not meant to sway the election outcome. :- )
In fact, then, it would become a campaign finance legal issue if campaign funds actually had been used to address concerns solely of personal reputation.
Brian Roberts
University of Texas
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Fredric Woocher
Sent: Wednesday, August 22, 2018 8:31 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>; Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
Mark,
Why are you struggling to put such a benign face on this, with all of your hypotheticals about whether this would be legal if Trump “promptly reimbursed” the Organization or the campaign for these expenditures? He didn’t. Trump doesn’t pay for anything out of his own pocket, even when he is legally obligated to do so, much less when he is trying to cover it up. The Information makes clear that the Trump Organization made the reimbursements to Cohen through phony “retainer” payments over the course of two years, well after the expenses were incurred by Cohen.
Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark Scarberry
Sent: Wednesday, August 22, 2018 2:20 PM
To: Election Law Listserv
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
As Adam helpfully noted, the federal felony "Information" setting out the charges against Cohen can be found here:
https://www.documentcloud.org/documents/4779531-Information-Felony.html<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.documentcloud.org%2fdocuments%2f4779531-Information-Felony.html&c=E,1,27Z-hPbfppPbVV0oVUyJmS-pjqtcigoZ0EUO0IiKH0X-u-rvnGRkakPJPBtFpXNYOCtvSn9ZxyrtB0uHlt6qQ-GWdtR4TSGbe5NgYV_3dC-JvamUdMc,&typo=1>.
Here are some comments, based on an initial reading (and repeating some of what I said in an earlier post). I hope I have understood the information correctly. Others may be able to correct any mistakes.
Counts 1-5 are tax evasion. Count 6 is for defrauding banks. As far as I can tell, these counts are unrelated to Pres. Trump or his campaign.
Count 7 is for causing a corporation to make, in effect, an illegal contribution to Pres. Trump's campaign by paying hush money.
Count 8 is a charge that Cohen himself made a contribution to the campaign in excess of the statutory limits on contributions, by paying hush money "in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign."
I need to read the information again more carefully, but I think only Count 8 involves alleged involvement of the campaign (beyond Cohen's own role in the campaign). I also don't think there is an allegation that any failure to disclose any of these matters was a crime.
I wonder whether Counts 7 and 8 are sustainable if the corporation or Cohen acted as Trump's agent in making payments and then received prompt reimbursement from Trump, or from campaign funds legally raised by the campaign. I don't remember whether Trump has admitted making such reimbursements.
Campaign expenses are generally, I think, incurred by agents, including corporations, such as ad agencies, with reimbursement expected either under agency law or pursuant to an express promise of reimbursement. I don't think a promptly reimbursed expenditure by an agent should be treated as a loan, but I could be wrong (as I often am). If the candidate promptly reimburses the agent, I think Buckley protects the expenditure and reimbursement. If the campaign reimburses the agent with properly raised campaign funds, it also seems that there is no crime. If Trump did reimburse these expenditures, but not promptly, I suppose we could say that the agent made a loan. I suppose that for Cohen or the corporation to be an agent, they would have had to act with Trump's authorization; I don't know whether that was the case.
Again, this is based on a first-reading of the information and my perhaps idiosyncratic reading of the law..
Mark
Prof. Mark S. Scarberry
Pepperdine Univ. School of Law
On Wed, Aug 22, 2018 at 12:36 PM, Adam Bonin <adam at boninlaw.com<mailto:adam at boninlaw.com>> wrote:
The felony information is here: https://www.documentcloud.org/documents/4779531-Information-Felony.html<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.documentcloud.org%2fdocuments%2f4779531-Information-Felony.html&c=E,1,R3Z67lis6sQDKlAEyAy0uDjp4nMmQVuhDsHC96ekY_aqPV9rAk4hpbOsQEPRQVGWqTpYggdOkP8_qXaxVHKNqzfeqFFLROwdOPiofBb-LwKEkmdm4w70sp0,&typo=1>
Adam C. Bonin
The Law Office of Adam C. Bonin
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