[EL] ELB News and Commentary 12/14/18
Rick Hasen
rhasen at law.uci.edu
Thu Dec 13 21:56:40 PST 2018
John Edwards, Donald Trump, and the Criminalization of Politics<https://electionlawblog.org/?p=102839>
Posted on December 13, 2018 9:49 pm<https://electionlawblog.org/?p=102839> by Rick Hasen<https://electionlawblog.org/?author=3>
In thinking about the potential criminal liability of Donald Trump for campaign finance violations, I time and again return to the prosecution of John Edwards for similar criminal behavior involving whether hush money payments to a mistress need to have been reported as campaign expenditures for the FEC. In a recent National Constitution Center podcas<https://constitutioncenter.org/podcast-cohen-trump-and-campaign-finance-law>t (with Jeffrey Rosen and Brad Smith), Brad made the point that some who support prosecuting Trump now did not support prosecuting Edwards. In response I remarked: “And you know I certainly politically was much closer to John Edwards than to Donald Trump. But I thought that the prosecution made sense to the extent that they could actually make their case. The problem in that case was that one of the donors was dead and the other one was I think over 100 years old and wasn’t available to testify. So you know there’s a problem of proof in that case.”
But after we recorded the podcast, in going back to what I wrote about Edwards at the time of his trial (in a piece Slate titled “Let John Edwards Go”), I expressed more caution<https://slate.com/news-and-politics/2012/04/john-edwards-should-not-be-prosecuted-for-campaign-finance-violations.html> about going after Edwards, seeing the prosecution in a larger pattern of the criminalization of politics:
But criminal liability for campaign finance violations should be off the table except in the most concrete and egregious cases. Otherwise, we risk deterring not just the unscrupulous, but also those who want to exercise their First Amendment rights by running for public office or supporting the candidates whom they believe will advance the public good. Even if John Edwards doesn’t deserve our sympathy, his conviction won’t do us any good.
So the question in my mind is whether the Trump situation fits into one of the most “concrete and egregious” situations I described or whether it is part of a larger pattern of the criminalization of politics. And in my mind, it is a bit of both.
To begin with, it is the John Edwards prosecution which itself strengthens the case against Trump. Everyone knew that Edwards was on trial for having donors make payments to his mistress to help fund his campaign. This put Trump and everyone else on fair notice that federal prosecutors were treating such payments as reportable campaign expenditures in certain circumstances. Trump even tweeted<https://twitter.com/realDonaldTrump/status/195584554290003969> about the case at the time. At the very least, the Edwards precedent should have caused Trump to seek advice of counsel on whether payments made to hush up mistresses timed specifically to help his election campaign were illegal.
Not only is the legal theory against Trump stronger because of the Edwards precedent; the facts of the Trump case appear much stronger than the Edwards case as well. Here there appears to be both testimony of Cohen and people from AMI (the National Enquirer parent company) who have said that they coordinated with Trump to make the payments in order to help Trump’s election chances. There was no corroboration for Edwards but apparently plenty for Trump. And there’s great evidence of consciousness of guilt: the use of the LLC and AMI to launder the payments; the denial for more than a year that the payments were made; the disguising of the reimbursements to Cohen from the Trump Organization as payments for legal services and technical services. This is no paperwork error<https://slate.com/news-and-politics/2018/12/trump-obama-campaign-finance-crime-tweets.html> like Obama or McCain made.
Trump of course would have the ability to show at any trial that he did not have the wilfulness required for this to become a criminal matter, but it looks like there is plenty of evidence there to give the issue to a jury. The timing of the Daniels payment is particularly damning in proving this was campaign related and not primarily about helping Trump’s personal life. Cohen and Trump refused to pay off Stormy Daniels until October 25, 2016, just before the election and after the release of the “Access Hollywood” tape, when Daniels had threatened to give an interview to a media outlet about their sexual encounter.
And yet…there is an element of truth in Brad saying that some people are latching onto the campaign finance violations as a way of trying to bring down a President they otherwise don’t like. I’ve said in numerous interviews that I have a hard time believing anyone in the House will want to impeach the President if all there is against Trump are these violations. Indeed, in a long thread on Twitter, Marty Lederman<https://twitter.com/marty_lederman/status/1073234293680455680> makes the case that the campaign finance issue is a distraction from the potentially more serious allegations against the President and the campaign finance charges are unlikely to bring him down. Indeed, even though I think the Edwards precedent put everyone on fair notice that paying hush money can be a campaign expenditure and using excessive or corporate contributions to fund it a campaign finance crime, one can easily imagine the five conservatives on the Supreme Court (who generally dislike campaign regulation) viewing the campaign finance statute much more narrowly should it come down to it.
So the bottom line is that the Edwards precedent gives the prosecutors ample ground to have gone after Cohen and AMI, and at least in theory to go after Trump as well. And the evidence that Trump caused these payments to be made to help his election chances is strong.
But what I wrote in 2012 about fears of the criminalization of politics still holds true. Caution is in order, and it likely will and should take more than this to bring down a President,
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>
“ACLU threatens lawsuit after Florida GOP tries to delay implementing voting rights ballot initiative”<https://electionlawblog.org/?p=102837>
Posted on December 13, 2018 3:58 pm<https://electionlawblog.org/?p=102837> by Rick Hasen<https://electionlawblog.org/?author=3>
Stephen Wolf:<https://www.dailykos.com/stories/2018/12/13/1810606/-ACLU-threatens-lawsuit-after-Florida-GOP-tries-to-delay-implementing-voting-rights-ballot-initiative>
The ACLU’s response to the news strongly suggests the organization will sue<https://twitter.com/dale_e_ho/status/1073339818925531136> to force DeSantis and Florida officials to stop stalling and automatically restore voting rights. However, they may not get a welcome reception if their case ultimately makes it to Florida’s Supreme Court, which seems a probable endgame. That’s because DeSantis will get to appoint replacements for three liberal-leaning justices who face mandatory retirement just hours after he’s sworn in as governor, which will flip the court to a six-to-one conservative majority. That’s no guarantee a lawsuit will fail, but things remain very much in limbo.
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Posted in felon voting<https://electionlawblog.org/?cat=66>
HuffPost Launches Three-Part Podcast About Voting Rights<https://electionlawblog.org/?p=102833>
Posted on December 13, 2018 2:27 pm<https://electionlawblog.org/?p=102833> by Rick Hasen<https://electionlawblog.org/?author=3>
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Sam Levine<https://twitter.com/srl>
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I'm very excited to share that HuffPost is releasing "Shut Out" -- a 3-part podcast about the fight to vote in America. It's hosted by @cslwrites<https://twitter.com/cslwrites> and reported by both of us. You can download it on Monday 12/17. Here's the trailer: https://itunes.apple.com/us/podcast/shut-out/id1446467576 …<https://t.co/JPBdHKNsZ1>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
“Trump was in the room during hush money discussions with tabloid publisher”<https://electionlawblog.org/?p=102831>
Posted on December 13, 2018 2:24 pm<https://electionlawblog.org/?p=102831> by Rick Hasen<https://electionlawblog.org/?author=3>
NBC News:<https://www.nbcnews.com/politics/justice-department/trump-was-room-during-hush-money-discussions-nbc-news-confirms-n947536>
Donald Trump was the third person in the room in August 2015 when his lawyer Michael Cohen<https://www.nbcnews.com/news/us-news/michael-cohen-gets-3-years-cases-involving-stormy-daniels-lying-n946956> and National Enquirer publisher David Pecker<http://www.nbcnews.com/news/us-news/publisher-national-enquirer-admits-paying-hush-money-help-trump-ahead-n947111> discussed ways Pecker could help counter negative stories about Trump’s relationships with women, NBC News has confirmed.
As part of a nonprosecution agreement disclosed Wednesday by federal prosecutors, American Media Inc., the Enquirer’s parent company, admitted that “Pecker offered to help deal with negative stories about that presidential candidate’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided.”
The “statement of admitted facts” says that AMI admitted making a $150,000 payment “in concert with the campaign,” and says that Pecker, Cohen<https://www.nbcnews.com/politics/politics-news/former-trump-attorney-michael-cohen-pleads-guilty-lying-congress-n941616> and “at least one other member of the campaign” were in the meeting. According to a person familiar with the matter, the “other member” was Trump.
Trump was first identified as attending the meeting by The Wall Street Journal<https://www.wsj.com/articles/donald-trump-played-central-role-in-hush-payoffs-to-stormy-daniels-and-karen-mcdougal-1541786601?mod=article_inline>.
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Posted in campaigns<https://electionlawblog.org/?cat=59>
“Trump Inauguration Spending Under Criminal Investigation by Federal Prosecutors”<https://electionlawblog.org/?p=102829>
Posted on December 13, 2018 2:22 pm<https://electionlawblog.org/?p=102829> by Rick Hasen<https://electionlawblog.org/?author=3>
WSJ:<https://www.wsj.com/articles/trump-inauguration-spending-under-criminal-investigation-by-federal-prosecutors-11544736455>
Federal prosecutors in Manhattan are investigating whether President Trump’s 2017 inaugural committee misspent some of the record $107 million it raised from donations<https://www.wsj.com/articles/trumps-inaugural-committee-spent-nearly-107-million-on-events-1518722022?mod=article_inline>, people familiar with the matter said.
The criminal probe by the Manhattan U.S. attorney’s office, which is in its early stages, also is examining whether some of the committee’s top donors gave money in exchange for access to the incoming Trump administration, policy concessions or to influence official administration positions, some of the people said.
Giving money in exchange for political favors could run afoul of federal corruption laws. Diverting funds from the organization, which was registered as a nonprofit, could also violate federal law….
Manhattan federal prosecutors in recent months asked Tennessee developer Franklin L. Haney for documents related to a $1 million donation he made to Mr. Trump’s inaugural committee in December 2016, according to a person familiar with the matter. Mr. Haney in early April hired Mr. Cohen, at the time serving as Mr. Trump’s personal lawyer, to help obtain a $5 billion loan from the Energy Department for a nuclear-power project, the Journal has previously reported<https://www.wsj.com/articles/top-trump-donor-agreed-to-pay-michael-cohen-10-million-for-nuclear-project-push-sources-say-1533245330?mod=article_inline>. Mr. Haney was asked for documents related to his correspondence with members of the committee, meeting calendars and paperwork for the donation, the person said. A loan application by Mr. Haney’s company is still pending at the Energy Department.
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Posted in campaigns<https://electionlawblog.org/?cat=59>
“As Election Fraud Probe Centers On N.C.’s 9th District, A Cynical Cloud Settles In”<https://electionlawblog.org/?p=102826>
Posted on December 13, 2018 12:10 pm<https://electionlawblog.org/?p=102826> by Rick Hasen<https://electionlawblog.org/?author=3>
NPR:<https://www.npr.org/2018/12/13/676319290/as-election-fraud-probe-centers-on-n-c-s-9th-district-a-cynical-cloud-settles-in?utm_source=twitter.com&utm_medium=social&utm_campaign=politics&utm_term=nprnews&utm_content=2043>
Pat Melvin<https://www.newsobserver.com/living/food-drink/article169087477.html>, a realtor in Elizabethtown, N.C., has been a friend of Dowless for 30 years. He says the accusations being made against Dowless and the Harris campaign are going to ruin politics in the state’s 9th District.
“We’ll never have any decent people run for office again,” Melvin says. “You’re just going to get the worst of the worst.”
Melvin says Dowless didn’t do anything illegal. Bladen is a poor county. And Melvin says Dowless was just going into low-income and senior citizen housing units to combat Democratic efforts to court those voters.
“Those people wouldn’t give a s**t about who they voted for, regardless. They have nothing to do with politics,” Melvin says. “When one side’s doing it, it was perfectly fine. Nobody’s ever complained about it. But then the other side started realizing this is what it’s going to take to win a race, that’s basically what happened.”
A 2016 episode of This American Life<https://www.thisamericanlife.org/606/transcript> focused on accusations in Bladen County of similar election fraud perpetrated by the Democrats, but no wrongdoing was ever uncovered.
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Posted in campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>
“Election Protection Releases Preliminary Report on 2018 Midterm Elections”<https://electionlawblog.org/?p=102824>
Posted on December 13, 2018 11:51 am<https://electionlawblog.org/?p=102824> by Rick Hasen<https://electionlawblog.org/?author=3>
Release<https://lawyerscommittee.org/press-release/election-protection-releases-preliminary-report-on-2018-midterm-elections/>:
According to Election Protection’s report, voters in 2018 faced widespread attempts at voter suppression and disenfranchisement across the country – obstacles that made voting more difficult or impossible. Election Protection kept track of the top barriers to the vote in 2018, which included: long lines due to poor staffing, insufficient materials, and faulty voting machines problems; aggressive voter registration purges or failure to process applications; poor poll-worker training; restrictive voting identification requirements; and failure to receive or count absentee ballots. The root causes of these barriers are burdensome and arbitrary voting laws and policies, lack of planning and investment by election administration, and racism and xenophobia.
As the 2018 elections process winds down and run-offs are completed, Election Protection will issue a final report that includes state-specific reports on the 2018 midterms. Election Protection partners will continue to engage with election officials and lawmakers to advocate for policies and practices that remove barriers to voting and ensure that all voters can exercise their right to vote without undue burden.
View the full report here<https://lawyerscommittee.org/election-protection-preliminary-report-on-2018-midterm-elections/>.
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>
“A Guide to Election Year Activities of Section 501(c)(3) Organizations”<https://electionlawblog.org/?p=102822>
Posted on December 13, 2018 11:48 am<https://electionlawblog.org/?p=102822> by Rick Hasen<https://electionlawblog.org/?author=3>
Steven Sholk’s annual review, now ready for your downloading pleasure<https://www.gibbonslaw.com/Files/Publication/4dd944d2-1a8a-40c2-a7de-ff9b132e94b7/Presentation/PublicationAttachment/0ad118d4-3834-494a-9fae-0477fa883411/776148_40.pdf>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>
“Why the National Enquirer’s Admission of Guilt Is Bad News for Trump”<https://electionlawblog.org/?p=102820>
Posted on December 13, 2018 11:46 am<https://electionlawblog.org/?p=102820> by Rick Hasen<https://electionlawblog.org/?author=3>
Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/why-national-enquirers-admission-guilt-bad-news-trump>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>
Brad Smith and Rick Hasen Join Podcast with Constitution Center’s Jeffrey Rosen to Debate: “Cohen, Trump, and Campaign Finance Law”<https://electionlawblog.org/?p=102816>
Posted on December 13, 2018 11:40 am<https://electionlawblog.org/?p=102816> by Rick Hasen<https://electionlawblog.org/?author=3>
This is the podcast<https://constitutioncenter.org/debate/podcasts/cohen-trump-and-campaign-finance-law> you’ve been waiting for:
President Trump’s former lawyer Michael Cohen was sentenced to three years in prison after pleading guilty to several crimes, including illegally making hush money payments to two women alleging affairs with then-candidate Trump. On this episode, campaign finance law experts Rick Hasen, a law professor at UC Irvine and co-editor of Election Law Journal, and Brad Smith, former chair of the FEC and Founder of the Institute for Free Speech, debate the campaign finance laws at issue, explore precedents like the John Edwards case, and consider possible legal liability for President Trump. They also dive into other current election and campaign finance law issues, including the case involving Donald Trump Jr. Jeffrey Rosen hosts.
You also might want to read my Slate piece<https://slate.com/news-and-politics/2018/12/trump-obama-campaign-finance-crime-tweets.html>, and Brad’s piece at NRO<https://www.nationalreview.com/2018/12/michael-cohen-sentencing-campaign-finance-law/>.
UPDATE: The transcript of the podcast is here<https://constitutioncenter.org/podcast-cohen-trump-and-campaign-finance-law>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>
“In North Carolina, Voting Controversies Are Common. Here’s the Recent History.”<https://electionlawblog.org/?p=102814>
Posted on December 13, 2018 11:02 am<https://electionlawblog.org/?p=102814> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT reports. <https://www.nytimes.com/2018/12/13/us/politics/north-carolina-voting-rights.html>
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Posted in The Voting Wars<https://electionlawblog.org/?cat=60>
Wisconsin: “Lame-duck limits on early voting – and the arguments for them – resemble ones already rejected by a judge”<https://electionlawblog.org/?p=102812>
Posted on December 13, 2018 10:06 am<https://electionlawblog.org/?p=102812> by Rick Hasen<https://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel<https://www.jsonline.com/story/news/politics/elections/2018/12/12/new-limits-wisconsin-early-voting-resemble-ones-judge-threw-out/2288263002/>:
Gov. Scott Walker and other Republicans are claiming lame-duck legislation would make early voting uniform across the state — a contention that was rejected by a federal judge two years ago.
That same judge is expected to weigh in on the matter again if Walker signs the early voting restrictions in the coming weeks.
Republican lawmakers included the early-voting limits in lame-duck legislation they sent to Walker last week that would also curb the powers of Walker’s Democratic successor, Tony Evers, and incoming Democratic Attorney General Josh Kaul.
Wisconsin had a record round of early voting for a midterm election last month, helping Democrats win every statewide office. The legislation would limit early voting to a maximum of two weeks.
Now, local governments can offer as much early voting as they want. Madison and Milwaukee — the state’s largest cities and its Democratic strongholds — provided six weeks of it this fall. Smaller communities allowed early voting for much shorter periods.
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Posted in election administration<https://electionlawblog.org/?cat=18>
“Democrats in New Jersey Have a Firm Grip on Power. They Want Even More.”<https://electionlawblog.org/?p=102808>
Posted on December 13, 2018 9:17 am<https://electionlawblog.org/?p=102808> by Rick Hasen<https://electionlawblog.org/?author=3>
NYT:
Legislative power brokers across the country have long designed district lines in back-room deals that entrenched their control for years, if not decades. But now, Democratic lawmakers in New Jersey are carrying out a power grab in an unusually public fashion: They are seeking to make Republicans a permanent minority by essentially writing gerrymandering into the State Constitution.
The New Jersey plan comes amid a national reckoning over the consequences of gerrymandering and has been met by fierce opposition across the political landscape — and not just from Republicans and nonpartisan watchdog groups.
Even some national Democratic leaders have criticized the plan, fearing that it undercuts Democratic efforts to attack what they term Republican strong-arm tactics in states capitals across the country. Republicans in Wisconsin and Michigan<https://www.nytimes.com/2018/12/10/us/politics/michigan-wisconsin-republicans-midwest.html?module=inline> are facing an intense backlash after state legislatures there voted to strip power from newly elected Democratic governors.
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Posted in redistricting<https://electionlawblog.org/?cat=6>
“Broad review of partisan gerrymandering urged”<https://electionlawblog.org/?p=102806>
Posted on December 13, 2018 9:04 am<https://electionlawblog.org/?p=102806> by Rick Hasen<https://electionlawblog.org/?author=3>
Lyle Denniston:<https://constitutioncenter.org/blog/broad-review-of-partisan-gerrymandering-urged>
A group of Maryland Republican voters, claiming that they were penalized for supporting their party’s candidates in the polling booth, asked the Supreme Court on Tuesday to make a sweeping review of the constitutionality of partisan gerrymandering, and to do so before next summer. The document called for back-to-back hearings, on the same day, in their case and in a similar pending case from North Carolina.
The new filing argued bluntly: “If this Court does not take the opportunity, once and for all, to condemn political gerrymandering as the First Amendment violation that it is, it will be giving a green light to lawmakers across the country to engage in gerrymandering in 2020 like never before.” (Redistricting of political boundaries is usually necessary after every 10-year census, due to population shifts.)
The seven GOP voters, who live in a western Maryland area that for decades routinely elected a Republican to a seat in the U.S. House of Representatives, have seen their candidates lose in every election since the state’s Democratic leaders drew up a new district in 2011, giving a decided advantage to Democratic candidates. The 2011 plan was drafted explicitly to help assure that Democrats won seven of the state’s eight seats in the House by flipping the Sixth District from GOP to Democratic dominance.
The result of that flip, the GOP voters argued in their new filing, is that “those living in rural western Maryland…are now represented by a congressman elected by wealthy suburban Democrats over 150 miles away, in the suburbs of Washington, D.C.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>
Federal District Court Rejects Constitutional Challenges to Maine Ranked Choice Voting in Congressional Election as Recount Proceeds without Drama<https://electionlawblog.org/?p=102804>
Posted on December 13, 2018 7:53 am<https://electionlawblog.org/?p=102804> by Rick Hasen<https://electionlawblog.org/?author=3>
Here<http://mediad.publicbroadcasting.net/p/mpbn/files/201812/poliquin_order.pdf> is the unsurprising court order.
And see Roll Call: Maine Recount Is a Low-Drama Affair — Unlike the Election<http://www.rollcall.com/news/politics/behind-scenes-recount-maines-2nd-district>.
[Share]<https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D102804&title=Federal%20District%20Court%20Rejects%20Constitutional%20Challenges%20to%20Maine%20Ranked%20Choice%20Voting%20in%20Congressional%20Election%20as%20Recount%20Proceeds%20without%20Drama>
Posted in alternative voting systems<https://electionlawblog.org/?cat=63>
--
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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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