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Trump misunderstands campaign finance law related to Cohen, women

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Donald Trump
Donald Trump.
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  • President Donald Trump seems to misunderstand the
    nation’s campaign-finance laws, judging by his comments in a
    Fox News interview.
  • The president may have inadvertently admitted to a
    crime as a result.

President Donald Trump came very close to outright saying he
committed a federal crime during a Fox News interview aired
Wednesday, and that may stem from an apparent lack of
understanding of the nation’s campaign-finance laws.

During his interview with “Fox and
Friends” host Ainsley Earhardt, Trump was asked if he knew of the
payments to former Playboy model Karen McDougal and porn star
Stormy Daniels ahead of the 2016 presidential election.
Earhardt’s question came after Trump’s former longtime lawyer
Michael Cohen said under oath in federal court that Trump
directed him to knowingly break the law to boost his own
candidacy by paying off those women to keep silent allegations of
affairs.

“Later on I knew,” Trump said. “Later on. But you have to
understand, Ainsley, what he did ― and they weren’t taken out of
campaign finance. That’s a big thing. That’s a much bigger thing.
Did they come out of the campaign? They came from me. I tweeted
about it. I don’t know if you know, but I tweeted about the
payments. But they didn’t come out of the campaign. In fact, my
first question when I heard about it was, did they come out of
the campaign? Because that could be a little dicey. They didn’t
come out of the campaign, and that’s big. It’s not even a
campaign violation.

Cohen was charged with a pair of campaign-finance violations
stemming from those payments, which the government viewed as
improper, as part of a plea deal he worked out with
prosecutors. Cohen explained that he committed the
campaign-finance violations “at the direction of the candidate”
and with the “purpose of influencing the election.”

The attorney said that at Trump’s direction, he moved to
keep both McDougal and Daniels, whose real name is Stephanie
Clifford, from publicly disclosing damaging information that
would hurt Trump’s campaign.

McDougal’s story of an affair with Trump was purchased by
American Media Inc., whose head, David Pecker, is a longtime
friend of Trump’s. The National Enquirer, which is owned by AMI,
purchased the rights to McDougal’s story for $150,000 in August
2016 but never published it. That practice is known as “catch and
kill.”

And just days before the 2016 presidential election, Cohen
facilitated a $130,000 payment to Daniels to keep her quiet about
her allegation of having a 2006 affair with Trump — an allegation
Trump has denied. 

Prosecutors wrote that they could back up Cohen’s admissions
through evidence obtained from the FBI’s April raids on Cohen’s
home, office, and hotel room that included documents,
electronic devices, audio recordings, text messages, messages
sent on encrypted apps, phone records, and emails.

The payments could still be a campaign finance violation — even
if the funds didn’t come from Trump’s campaign

Based on Trump’s interview on Fox, he seems to think that a
campaign-finance violation would have occurred if campaign funds
were used to pay off Daniels and McDougal, rather than his
personal cash, which was used to reimburse Cohen for the initial
Daniels payment. The reverse of this is true,
as The Huffington Post first noted.

If Trump had routed money through his campaign to pay off women,
it would be legal. Campaigns can spend unlimited amounts of money
and for whatever purposes it deems necessary. The problem would
have been that if Trump did use his campaign to pay off any
women, it would have defeated the purpose of making the payment,
which was to ensure silence. Such an expenditure would have had
to be reported to the Federal Election Commission and publicly
disclosed.

Cohen, meanwhile, pleaded guilty to making an excessive
contribution far beyond the legal limit. And if the McDougal deal
was made to help boost Trump’s campaign, which was the case
according to Cohen’s testimony, that too is an excessive
contribution. Neither was reported by the campaign, though the
purpose of the donations was to benefit it, Cohen said.

Trump first disclosed his reimbursement to Cohen, which came in
the form of a retainer that was paid out throughout 2017, on his
latest financial disclosure report earlier this year.

Cohen’s guilty plea hurts Trump’s best defense

Trump’s best defense is one that Cohen claimed was true earlier
this year, and one that Trump’s personal attorney, Rudy Giuliani,
has also latched onto: That the arrangement was made not
to boost Trump’s candidacy but to shield his family, particularly
his wife Melania Trump
, from the embarrassing information.
That argument was what helped former Democratic Sen. John Edwards
of North Carolina in a similar case.

But Cohen’s testimony, backed up
by the what the government says is evidence that corroborates it,
hurts that narrative.

Trump made another claim in the Fox interview, and on Twitter,
regarding campaign finance law, saying that his predecessor,
former President Barack Obama, “had a massive campaign violation”
that did not end up leading to similar charges. To Trump, this
seems outrageously unfair.

The president is mentioning a nearly $400,000 fine levied against
Obama’s 2008 campaign by the FEC for failing to file reports near
the end of the election sprint and for failing to properly refund
excessive contributions under a strict timeframe.

As The Huffington Post wrote,
that fine remains the largest the FEC has ever issued. But there
is a major distinction between that case and Cohen’s crimes. That
has to deal with having “knowingly and willfully” violated
campaign-finance law, which is the standard for such a violation
being criminal. Without a violation meeting that standard, it is
viewed as a civil infraction.

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