Michael Cohen was sentenced to 36 months in prison on Wednesday for various crimes the Robert Mueller investigation found he had committed. As CNN recently reported, prosecutors from the Manhattan U.S. attorney’s office alleged he admitted to paying off two women (hush money) and that he did so in coordination with and at the direction of President Trump, thereby violating one or more campaign finance laws.
On the day of Cohen’s sentencing, the Gateway Pundit reported that prosecutors for the Southern District of New York announced that they had reached a non-prosecution agreement with American Media, Inc., the company that paid $150,000 to one of the women. As part of the non-prosecution agreement, American Media reportedly admitted that it made the payment in concert with the Trump campaign in order to bury the story so that it would not influence the election.
Not surprisingly, and as if on cue, this has led to renewed calls for impeachment and possibly criminal charges against the president by some Democrats. However, such action, if successful, could create bad precedent and have far-reaching implications.
Despite American Media’s reported admission, there are expenditures that might “influence an election,” yet not constitute campaign-related expenses. According to an article in The Daily Signal, the Federal Election Campaign Act (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.”
Rudy Giuliani, Trump’s attorney, previously indicated that the payment to Stormy 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.” This provision of the law, along with the John Edwards case, provides the president with a strong counter-punch to these allegations.
Putting aside the legalities of the payments, Mueller and prosecutors from the Southern District of New York need to seriously consider the type of precedent they would be setting if they file criminal charges against Trump for alleged campaign finance violations relating to hush money payments based on the facts that have been disclosed to date. If they successfully pursue such charges, they could be setting precedent that could have far-reaching and unintended consequences.
According to the Chicago Tribune, members of Congress have a “taxpayer hush money fund,” where claims for sexual harassment, discrimination and other workplace issues are settled and paid out with money supplied by the U.S. Treasury. Unlike the payments in Trump’s case, which were seemingly made using personal funds, congressional settlements and payoffs used taxpayer funds. More importantly, if prosecutors take the position that hush-money payments made to protect a person’s reputation and family should be deemed campaign related expenditures (because they might affect an election), the precedent could be very problematic and far-reaching.
For example, what should happen to those in Congress? Would prosecutors be compelled to pursue those members in Congress who have also made such payoffs? If Trump’s payments are deemed to be campaign-related expenses for the purpose of impacting an election, should each and every House or Senate member who has engaged in such conduct face criminal charges?
According to The Daily Signal, “Last year, it was reported that Congress has secretly paid out over $17 million to settle close to 300 cases by staffers claiming sexual and other forms of harassment and discrimination.” If prosecutors failed to pursue charges relating to each of these individual claims and payments (normally these are made in secret and the identities of the parties are withheld unless suit is filed), would they be applying the law arbitrarily and unfairly?
It is evident that some Democrats want to find a way to remove Trump from office. If, for example, they can create a narrative that Trump committed a crime and violated campaign finance rules, they believe that the American public would more favorably support impeachment proceedings and possibly criminal charges.
Although some legal scholars have openly stated that the payments in Trump’s case do not appear to have violated campaign finance rules, Mueller, prosecutors in the Southern District of New York and congressional Democrats should think long and hard about the precedent they are attempting to set. While their eyes are set on one particular person, the potential impact could end up netting many others who have engaged in similar (or worse) conduct.