A brief segment of a Fox & Friends interview released this afternoon by Fox News features President Donald Trump repeatedly emphasizing that the hush money payments at the center of Michael Cohen’s guilty plea were not made with campaign funds. There’s just one problem: That doesn’t exonerate him at all.
In context, Trump appears to be trying to say that this exonerates him, but the opposite is the case — you can’t just evade campaign finance rules by paying for your campaign expenses with non-campaign funds. If you could, the rules would be meaningless.
A couple things:— Robert Maguire (@RobertMaguire_) August 22, 2018
1) Trump emphasizes that the money didn't come out of the campaign, as though that would exonerate him. It doesn't. In fact, it's a central part of the violation.
2) He says he knew about the payment. Yet, in April, he said he had no knowledge of the payment. pic.twitter.com/Qmv40lJ5li
One thing that politicians sometimes get into legal trouble for is illegally using campaign funds for personal expenses. This is part of the case against Rep. Duncan Hunter (R-CA), and the basic idea is that you’re not supposed to use campaign money as a personal piggy bank or slush fund.
A separate issue, however, is that while a private citizen is free to make a secret hush money payment to his former mistress if he likes, a political campaign is required to disclose what it’s spending money on. If Trump had reported a cash payment to Stormy Daniels to the Federal Election Commission, that would have naturally raised questions about why he was paying her and somewhat defeat the purpose of making hush money payments in the first place. So what Trump and Cohen seem to have decided to do is avoid using campaign money, thus allowing them to avoid disclosure rules.
But just like lying on the disclosure form would be illegal and refusing to do the disclosure would be illegal, paying for campaign expenses out of a non-campaign account and then declining to report that as a contribution to the campaign is also illegal.
Simply put, there is no legal way to spend money on your election campaign without disclosing that fact.
There are two ways to get out of legal hot water here.
- One would be to argue that the payments were genuinely not a campaign expense. Perhaps Trump had no concern about the political impact of Daniels’s revelations but simply didn’t want his wife and kids to find out about the affair. Trump seems to have messed this up, and instead of making the correct argument, he appeared to confess to a crime.
- The other would be to argue that Cohen was lying in court and Trump had no knowledge that the payments happened. In the course of the interview, Trump first denies knowing about it, then concedes he did know — but says it was only after the fact. It’s not entirely clear that this would really exonerate Trump, since even by his account it appears he was aware that Cohen committed a crime on his behalf and didn’t say or do anything about it.
None of this is an ironclad court case, but it’s hard to avoid the conclusion that if Trump weren’t president, he’d be facing an imminent indictment. The US attorney has secured a guilty plea from Cohen for, among other things, campaign finance violations. And Cohen says those violations were undertaken at the behest of his boss.
If the US attorney’s office doesn’t believe Cohen’s story, they shouldn’t have accepted his plea in that form. And if they do believe Cohen’s story, then his boss is also likely guilty. The fact that the boss in question can’t even deny the allegations properly only underscores how strange the situation is. The fact that the boss in question is the president of the United States genuinely does make it a different situation, so it’s not surprising that the Southern District of New York hasn’t plowed ahead.
But this is where the US Congress is supposed to step in and do something — launch its own investigation, urge the appointment of a special counsel, urge an expansion of the existing special counsel’s mandate, etc. — but instead, congressional Republicans just don’t want to talk about it.