On Wednesday, Michael Cohen, President Donald Trump’s former personal attorney, was sentenced to three years in prison as part of a plea bargain with the U.S. Attorney for the Southern District of New York. Michael Cohen plead guilty to eight counts of financial crimes: tax fraud (five counts), making false statements to a financial institution, unlawful corporation contributions, and excessive campaign contributions. Although he plead guilty to counts of unlawful corporation contributions and excessive campaign contributions, it does not mean that what happened was illegal; therefore, he plead guilty to something that was not a federal crime. It is evident that the U.S. Attorney’s office is taking an overaggressive approach, especially since they might have violated their own Justice Department’s policy.
To lay the foundation of the overaggressive approach, Hans von Spakovsky explains important facts in his article in The Daily Signal.
Robert Khuzami . . . says in the government’s sentencing memorandum that Cohen committed a campaign finance violation by arranging payments from corporations to two women, [from which] Cohen eventually invoiced the Trump Organization for the Daniels payment. Khuzami asserts these were illegal corporate contributions to the Trump campaign because they were made with “the intent to influence the 2016 presidential election.” Thus, he claims, they were campaign-related expenses and all of the rules governing federal campaigns apply to the payments.
Furthermore, in Mr. von Spakovsky’s article he explains the flaws with Khuzami’s claims, for example:
[H]is theory that anything intended to “influence” an election is a campaign-related expense fails to take into account the statutory limitation on this definition. FECA (52 U.S.C. 30114 (b)(2)) specifically says that campaign-related expenses do not include any expenditures “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” [Additionally], Rudy Giuliani, has said, the payment to Daniels was made “to resolve a personal and false allegation in order to protect the president’s family” and “it would have been done in any event, whether he was a candidate or not.”
Also, it must not be forgotten that the Department of Justice has had a similar case before them involving former Democratic presidential candidate John Edwards. Mr. von Spakovsky differentiates the two cases by explaining that:
[T]he Justice Department tried to argue that hush money payments to a mistress were a “campaign-related” expense, [when] . . . campaign donors made payments to Edwards’ mistress, Rielle Hunter, a videographer who was actually working on his presidential campaign.
Unlike Daniels and McDougal, Hunter was paid $1 million while directly working for the campaign and Edwards. Her payments did not go through the Edwards campaign’s account, but the government tried to claim they were campaign expenditures because they were intended to protect Edwards’ reputation during his presidential run and thus “influence” the election.
Yet a jury acquitted Edwards on the charge of accepting an illegal campaign donation and failed to reach a verdict—resulting in a mistrial—on the other charges, which included filing false reports with the Federal Election Commission (FEC) for not listing the payments to his mistress. . . .
So the government in the Edwards prosecution was unable to convince the jury that these were campaign-related expenses covered by federal campaign finance law. The Justice Department subsequently dropped its prosecution and never retried Edwards. . . .
And this wasn’t just their opinion—it was also the opinion of the FEC. … [W]hen the FEC audited the campaign, it determined that these payments were not campaign-related expenses that needed to be reported or run through the campaign. Thus, the commission said the federal rules governing campaign contributions and expenditures did not apply.
And, even if it was a campaign finance violation, which it was not, the typical due course of action is for the FEC to impose a penalty, as it did in 2008 when it was discovered that President Barack Obama’s presidential campaign had nearly $2 million worth in campaign violations. The then-Obama Justice Department decided not to prosecute, but instead the FEC fined the campaign $375,000. Lastly, if certain U.S. Attorney offices intend to continue to claim that these type of campaign-related expenditures are intended to protect the reputation of the candidate (or political official), then it may be necessary to look into the reported $17 million that Congress has paid out to settle sexual harassment and discrimination claims reported by Hill staffers over the course of 20 years. The money comes out of a special fund set up by the Congressional Accountability Act within the US Treasury, which the taxpayers fully fund.
But the fact remains that regardless of Mr. Cohen's guilty plea, it would be a stretch of the current interpretation of federal campaign finance law to conclude that the campaign finance violations he plead guilty to were actually a crime.