[EL] ELB News and Commentary 2/14/18

Wed Feb 14 08:08:08 PST 2018

In Response to FEC Complaint by Common Cause, Trump’s Lawyer Michael Cohen Says He Paid $130,000 to Porn Star. Is There a Campaign Finance Violation?<http://electionlawblog.org/?p=97494>
Posted on February 14, 2018 8:00 am<http://electionlawblog.org/?p=97494> by Rick Hasen<http://electionlawblog.org/?author=3>

Maggie Haberman<https://www.nytimes.com/2018/02/13/us/politics/stormy-daniels-michael-cohen-trump.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=sectionfront> for the NYT:

Michael D. Cohen, President Trump’s longtime personal lawyer, said on Tuesday that he had paid $130,000 out of his own pocket to a pornographic-film actress who had once claimed to have had an affair with Mr. Trump.

In the most detailed explanation of the 2016 payment made to the actress<https://www.nytimes.com/2018/01/12/us/trump-stephanie-clifford-stormy-daniels.html>, Stephanie Clifford, Mr. Cohen, who worked as a counsel to the Trump Organization for more than a decade, said he was not reimbursed for the payment.

“Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly,” Mr. Cohen said in a statement to The New York Times. “The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone.”

He declined to answer several follow-up questions, including whether Mr. Trump had been aware that Mr. Cohen made the payment, why he made the payment or whether he had made similar payments to other people over the years.

Here is a statement from Cohen, where he said he used his personal funds <https://twitter.com/tparti/status/963624434140614656> “to facilitate a payment.”

Orin Kerr:<http://reason.com/volokh/2018/02/14/did-trumps-lawyer-pay-stormy-daniels-out>

The press is widely reporting, apparently based on this statement, that Cohen said he paid the $130,000 to Daniels out of his own pocket<https://www.google.com/search?q=michael+cohen+out+of+his+own+pocket>. The phrase “out of his own pocket” seems to be used by pretty much every story. “Trump’s Longtime Lawyer Says He Paid Stormy Daniels Out of His Own Pocket,” the New York Times<https://www.nytimes.com/2018/02/13/us/politics/stormy-daniels-michael-cohen-trump.html> headline says. And the Fox News<http://www.foxnews.com/politics/2018/02/14/michael-cohen-trumps-lawyer-says-paid-stormy-daniels-130000-out-own-pocket.html> headline is similar: “Michael Cohen, Trump’s lawyer, says he paid Stormy Daniels $130,000 out of own pocket.”

Now, clearly the most important part of the story is verification from the President’s own personal lawyer that, in 2016, he was himself involved in paying $130,000 to a porn star who had claimed to have had an affair with the President. I’m old enough to remember when something like that would have been a major Presidential scandal.<http://www.drudgereportarchives.com/data/2002/01/17/20020117_175502_ml.htm>That seems like a long time ago.

But, with my apologies, let me focus on one really small part of the story: Does Cohen actually say he paid the $130,000 out of his own pocket? If Cohen’s statement above is the only statement he has made, which as far as I can tell is the case, he never actually says that. All Cohen says is that he used his personal funds to “facilitate a payment of $130,000.”

To “facilitate”, the dictionary tells us<http://www.dictionary.com/browse/facilitate>, means to assist with or to make something easier. Given that, I would think that the most literal reading of Cohen’s statement is just that he used his own funds to arrange the payment. He’s not making any statement about whose $130,000 was paid. For example, if it took Cohen a few hundred dollars to set up an entity to pay Daniels, and to wire someone else’s $130,000 to her, then he would have been using his own personal funds to faciltate that payment. Sending on the money would be a transaction between two parties, Daniels and the entity Cohen set up, and there would have been no need to reimburse Cohen $130,000 because it wasn’t Cohen’s money that was sent.

Now whether Cohen paid using his own funds or was reimbursed personally by Trump or someone else, it still may be a campaign finance violation IF this is was a campaign related payment. If Cohen paid, then he made an excessive contribution to the campaign. If he funneled money for others, it might be a conduit contribution or an unreported campaign expenditure from Trump.

The real unanswered question is whether this was a campaign-related payment, or instead money paid to cover up a private affair. We’ve seen something like this before, in the John Edwards-Bunny Mellon hush money situation (where the jury found Edwards not guilty). The difference here is that this happens in the throes of the campaign, and it seems harder to argue that this is something just to preserve Trump’s reputation unrelated to the campaign.

Thomas Frampton<https://blog.harvardlawreview.org/the-coming-storm-hush-money-and-the-federal-election-campaign-act/> has a detailed analysis of the legal issues and permutations (written before Cohen’s admission) over at the Harvard Law Review blog. A key point from Frampton:

While there is much we still need to learn about the $130,000 reportedly paid to Daniels, there can be little doubt of its purpose. According to recent reporting<http://perma.cc/E6RB-VF8K>, while rumors about Trump and Daniels had circulated for years, Daniels was talking with Slate, Good Morning America, and other media outlets in October 2016. The Trump campaign was still reeling from the Oct. 7, 2016 revelation of the infamous Access Hollywoodtape, but by the end of the month, the campaign had turned a corner: Clinton’s sizeable national polling advantage was evaporating. Then, “about a week before the election, Daniels stopped responding to calls and text messages” from the media. According to the Wall Street Journal<https://www.wsj.com/articles/trump-lawyer-used-private-company-pseudonyms-to-pay-porn-star-stormy-daniels-1516315731>, the Delaware LLC that transferred the money to Daniels’s representative was formed on October 17, 2016, less than three weeks before the November 7, 2016 election. At least with respect to the motivation for the payment, the evidence that was lacking in the Edwards case (and which ultimately sunk the prosecution) is abundant in Trump’s case….

On the other hand, it does seem somewhat harder to prove that the payment is a campaign “contribution” if its original source was Trump’s own personal funds, but for reasons that are more atmospheric than legal: it strikes me as harder to convince a jury that such an expense is fundamentally about the election (rather than about personal, reputational harm) when the candidate himself ponies up the cash, even if the timing is suspicious. Consider the following. A follicly-challenged candidate, who (in his private life) takes great pride in his baldness, has learned from his advisors that he will gain ten points in the polls if he undergoes a painful hair-replacement surgery. The candidate’s desire to be elected eventually overcomes his affinity for his baldness, and though he never would have dreamed of such a thing before his candidacy, he assents to the $5,000 operation. On the most basic, legalistic level, it shouldn’t matter whether the candidate or a supporter pays for the $5,000 operation: the payment is a “contribution” to the campaign. But if such a case were ever to go to trial, it would seem much easier to mount a defense that this payment was “personal” in some basic way if the candidate himself paid for it.

Given pre-candidate Trump’s reputation, it is not clear that the payment in this instance could be considered personal so as to not sully his already-sullied reputation.  Remember this comes after the “grab them by the pussy” comments.

I don’t expect much to come out of the FEC, and in terms of possible criminal charges Frampton notes that since this stems from the campaign, there would be good reason for Jeff Sessions to recuse from any consideration of whether DOJ would charge Cohen or anyone else with a crime. (Wholly apart from the politics, the John Edwards saga, not to mention Sens. Menendez and Ted Stevens may make the Department a little gun shy.)
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Pa. congressional map stalemate edges closer to court-imposed deadline”<http://electionlawblog.org/?p=97492>
Posted on February 14, 2018 7:44 am<http://electionlawblog.org/?p=97492> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<http://www.pennlive.com/politics/index.ssf/2018/02/hopes_for_legislative_agreemen.html> on the Pa. redistricting battle.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Supreme Court still feeling the impact of Antonin Scalia’s death”<http://electionlawblog.org/?p=97490>
Posted on February 14, 2018 7:37 am<http://electionlawblog.org/?p=97490> by Rick Hasen<http://electionlawblog.org/?author=3>

Great Joan Biskupic CNN report,<https://www.cnn.com/2018/02/13/politics/scalia-gorsuch-supreme-court/index.html> which includes this nugget:

Gorsuch’s tone during arguments can be haughty, which has sparked tensions, and he has bucked some institutional practices. He declined to attend a private session with the other justices soon after he was sworn in, causing a rift with Roberts.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“Former Cruz Campaign Manager Was Involved in Conduit Contribution Scheme”<http://electionlawblog.org/?p=97488>
Posted on February 14, 2018 7:27 am<http://electionlawblog.org/?p=97488> by Rick Hasen<http://electionlawblog.org/?author=3>

New<https://www.citizensforethics.org/former-cruz-campaign-manager-involved-conduit-contribution-scheme/> from CREW.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Experts launch PlanScore.org to allow citizens to evaluate redistricting schemes”<http://electionlawblog.org/?p=97486>
Posted on February 14, 2018 7:25 am<http://electionlawblog.org/?p=97486> by Rick Hasen<http://electionlawblog.org/?author=3>

Release:
PlanScore.org<http://planscore.org/>—a new website developed by redistricting experts and Silicon Valley coding experts— allows citizens to upload proposed state districting maps and instantaneously have them scored for partisan symmetry using three widely-accepted measures: the efficiency gap<http://civitaspublicaffairsgroupllc.cmail20.com/t/t-l-uylrult-ptuddydtl-r/>, partisan bias<http://civitaspublicaffairsgroupllc.cmail20.com/t/t-l-uylrult-ptuddydtl-y/>, and the mean-median difference<http://civitaspublicaffairsgroupllc.cmail20.com/t/t-l-uylrult-ptuddydtl-t/>.  This scoring is based on precinct-level data and resembles how mapmakers evaluate their own plans.  Until now, this information was available primarily to experts with access to costly software.

“We are thrilled to be able to bring PlanScore to the public,” said PlanScore’s executive director Michal Migurski, a geospatial code and data expert who recently served as chief technology officer of Code for America. “With crucial information at their fingertips, citizens will be more empowered to hold their elected officials accountable for producing maps that strengthen rather than detract from our democracy.”

In addition to allowing citizens to score maps, the website offers historical data for state house and U.S. congressional district plans from 1972 to the present.  Presently, the website enables citizens to score proposed maps for Pennsylvania, with Wisconsin, North Carolina, Maryland and Ohio coming soon.  By 2020, PlanScore plans to allow maps to be scored for all 50 states.

An analysis conducted through PlanScore shows that the Pennsylvania congressional map proposed February 9 by Republican legislative leaders to meet the state Supreme Court’s order is still seriously skewed in favor of Republican candidates and voters.  The new map was scored for partisan symmetry using the three measures mentioned above. The proposed congressional map has an efficiency gap of 10.9 percent, a partisan bias of 11.5 percent, and a mean-median difference of 5.8 percent, all in the direction of the Republicans who control the legislature.  For each of these measures, scores of zero reflect a mapping scheme with no skew.  This compares to the present congressional map with an efficiency gap of 14.3 percent, a partisan bias of 15.9 percent, and a mean-median difference of 5.5 percent, all in a Republican direction.

“This new proposal by the legislative leadership in Pennsylvania reveals the same large and durable Republican advantage as the plan the state Supreme Court struck down,” said PlanScore board member and University of Chicago Law School Professor Nicholas Stephanopoulos. “PlanScore instantaneously discloses this information, which previously was only available to politicians and their hired experts. PlanScore will be an invaluable tool whenever district lines are being drawn, making their partisan implications clear for all to see.”

PlanScore is a non-partisan website and tool developed by redistricting and coding experts.  Its board members include: Dr. Eric McGhee, inventor of the efficiency gap; Dr. Simon Jackman, CEO of the US Studies Centre at the University of Sydney and formerly Professor of Political Science and Statistics at Stanford University, and an expert witness on the measures of partisan symmetry in the Gill v. Whitford Wisconsin gerrymandering case; Nicholas Stephanopoulos, Professor of Law at the University of Chicago Law School and co-counsel in Gill v. Whitford; Ruth Greenwood, Senior Legal Counsel at the Campaign Legal Center and co-counsel in Gill v. Whitford; and Michal Migurski, geospatial coding and data expert who recently served as chief technology officer of Code for America.

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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Russia Sees Midterm Elections as Chance to Sow Fresh Discord, Intelligence Chiefs Warn”<http://electionlawblog.org/?p=97484>
Posted on February 14, 2018 7:23 am<http://electionlawblog.org/?p=97484> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/02/13/us/politics/russia-sees-midterm-elections-as-chance-to-sow-fresh-discord-intelligence-chiefs-warn.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>

 Russia is already meddling in the midterm elections this year, the top American intelligence officials said on Tuesday, warning that Moscow is using a digital strategy to worsen the country’s political and social divisions.

Russia is using fake accounts on social media — many of them bots — to spread disinformation, the officials said. European elections are being targeted, too, and the attacks were not likely to end this year, they warned.

“We expect Russia to continue using propaganda, social media, false-flag personas, sympathetic spokespeople and other means of influence to try to exacerbate social and political fissures in the United States,” Dan Coats, the director of national intelligence, told the Senate Intelligence Committee at its annual hearing on worldwide threats.

Mr. Coats and the other intelligence chiefs laid out a pair of central challenges for the United States: contending with the flow of Russian misinformation and shoring up the defenses of electoral systems, which are run by individual states and were seen as highly vulnerable in 2016.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

“Keith Gaddie—Thinking About Gerrymandering”<http://electionlawblog.org/?p=97482>
Posted on February 14, 2018 7:20 am<http://electionlawblog.org/?p=97482> by Rick Hasen<http://electionlawblog.org/?author=3>

Here’s a video<https://www.youtube.com/watch?v=1Y0qnnR9U34&feature=youtu.be> of Keith giving a lecture at the  University of Missouri Kinder Institute discussing whether partisanship is too unstable to measure for purposes of discerning partisan gerrrymandering.
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Posted in redistricting<http://electionlawblog.org/?cat=6>

Pennsylvania Governor Rejects Republican Legislative Leaders’ Proposed Districting Plan, Meaning Special Master Will Draw Congressional Districts<http://electionlawblog.org/?p=97480>
Posted on February 13, 2018 9:00 am<http://electionlawblog.org/?p=97480> by Rick Hasen<http://electionlawblog.org/?author=3>

Gov. statement:<https://www.governor.pa.gov/governor-tom-wolf-rejects-partisan-gerrymandered-map/>

 Governor Tom Wolf today told the Pennsylvania Supreme Court that he will not accept the proposed map Republican legislative leaders submitted because it, too, is a partisan gerrymander that does not comply with the court’s order or Pennsylvania’s Constitution.

“Partisan gerrymandering weakens citizen power, promotes gridlock and stifles meaningful reform,” Governor Wolf said. ” As non-partisan analysts have already said, their map maintains a similar partisan advantage by employing many of the same unconstitutional tactics present in their 2011 map.

“The analysis by my team shows that, like the 2011 map, the map submitted to my office by Republican leaders is still a gerrymander. Their map clearly seeks to benefit one political party, which is the essence of why the court found the current map to be unconstitutional.”

Read a statement from Professor Moon Duchin on her analysis here<https://www.governor.pa.gov/wp-content/uploads/2018/02/20180213-Summary-of-conclusions-of-joint-submission-plan-M.-Duchin-021318.pdf>.

The analysis by Governor Wolf’s team confirms the universal analysis of various non-partisan experts that say the Republican leaders’ submission is another partisan gerrymander.

·         Princeton University professor Sam Wang said<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Felection.princeton.edu%2F2018%2F02%2F10%2Fthree-clues-that-todays-proposed-pennsylvania-map-is-still-a-gerrymander%2F&data=02%7C01%7Cjjabbott%40pa.gov%7C839e1177f45242798aac08d572f0d7b4%7C418e284101284dd59b6c47fc5a9a1bde%7C1%7C0%7C636541301103017969&sdata=1P%2BEf8TRk0dJLnoTTyJEeyiTQpvc6k4CHgb73tUQLmA%3D&reserved=0> bluntly that “a prettier map can still conceal ill intent” and “it appears that Republicans are not dealing in good faith with the Pennsylvania Supreme Court’s order.”

·         A Washington Post data expert concluded<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.washingtonpost.com%2Fnews%2Fwonk%2Fwp%2F2018%2F02%2F11%2Fpennsylvania-republicans-have-drawn-a-new-congressional-map-that-is-just-as-gerrymandered-as-the-old-one%2F%3Futm_term%3D.56dc31719d32&data=02%7C01%7Cjjabbott%40pa.gov%7C839e1177f45242798aac08d572f0d7b4%7C418e284101284dd59b6c47fc5a9a1bde%7C1%7C0%7C636541301103017969&sdata=FqyJLkmExuvE1f1ut5OPhLBHYf%2BBIxeD1HjzB8mzwhk%3D&reserved=0>, “Pennsylvania Republicans have drawn a new congressional map that is just as gerrymandered as the old one.”

·         The New York Times found<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Ftwitter.com%2FNate_Cohn%2Fstatus%2F962493569813696514&data=02%7C01%7Cjjabbott%40pa.gov%7C839e1177f45242798aac08d572f0d7b4%7C418e284101284dd59b6c47fc5a9a1bde%7C1%7C0%7C636541301103017969&sdata=89NV2GRSKzb4iK8MYwQiw818WN8fZR6WTo%2Ft03fWfeU%3D&reserved=0> the submitted map would extract the same partisan advantage for Republicans as the current one.

·         Brian Amos, a redistricting expert at the University of Florida, said<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.salon.com%2F2018%2F02%2F12%2Fpennsylvania-republicans-solution-to-gerrymandering-is-more-gerrymandering%2F&data=02%7C01%7Cjjabbott%40pa.gov%7C839e1177f45242798aac08d572f0d7b4%7C418e284101284dd59b6c47fc5a9a1bde%7C1%7C0%7C636541301103017969&sdata=ZYAeDUMWnzzhsklbGHn64YYZsoJh3NG2J909H%2FazIek%3D&reserved=0>, “…There was still a strong Republican bias, which is why the congressional and State Senate plans were struck down for being gerrymanders.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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