Monday, July 19, 2021

Follow the Money: Condo Developers Should be Required to Post a Bond

Noticeably absent from the Miami Herald’s editorial “How can we avoid another collapse like Surfside? Florida can start with these reforms” (July 11, 2021) was any focus on the role of the developer. (Under Florida law, “developer” includes other than the originator of the condominium, but let’s assume it does not.) 


In the words of a 1999 law review article by a veteran New York real estate lawyer explaining the history of condominium development: “Developers recognized that they could take the concept of the apartment complex … and enhance that concept with modest recreational facilities (in most cases). They could then sell the units for a quick initial profit and take back a recreation lease with escalations to ensure a continuing long-term profit.”  As long as the real estate market stayed stable, it was all blue skies above: “Lenders and developers alike were raking in big profits and the condo purchasers were delighted with their new homes. Everyone was happy.”


But what if, in the process of designing and building the condominium, the developer and the contractor cut corners? And what if the local building authorities, focused on getting the condominium on the tax rolls, did a superficial job of inspecting and reviewing the plans and the construction itself, turned a blind eye towards obvious problems, or worse, were induced to look away? And what if, after the turnover to the Condominium Association, the Board and the unit owners shirked their responsibility to put money away for the inevitable rainy day?


Anyone who ever professed to believe that none of these “what ifs” was not only possible but, in many cases, likely, is too naïve to be credited. 

But there are no provisions in the Florida Condominium Act designed to keep developers on the hook for construction defects that are (or should be) known to the developers from the time of construction but may not become evident until long after the developer ceases to exist or the developer “turns over” control of the condominium to the other unit owners (in the form of a non-profit Association governed by volunteer Board members). Yes, there are some provisions designed to impose some responsibility on developers, but they are not long-term solutions and usually are limited in nature and riddled by loopholes, and are difficult and expensive to enforce. See David G. Muller, Transition Committee and Construction Defect Claims (2020).
If the Florida Legislature intends to get serious on “Surfside”—talk about naïve!—here is one way that they could tackle it. The developer would be required either to post a bond, to last for a defined period of time (say, 20 years), in a particular amount. The amount would be determined by an independent structural engineer observing and testing the design and construction of the structure. Until turnover, the amount of the bond or trust would be unchanged. Thereafter, the Association would be required to fund, within the remaining years of the bond or trust, a per-year pro rata contribution to the Association’s reserve account, and the amount of the bond would be reduced by each year’s Association payment. The funds in the bond or reserve account could be used solely to finance capital (i.e., non-operating) expenses, as determined by an independent structural engineer.
The idea is to go where the profits are located and the responsibility for shoddy construction originated. If such legislation were passed, the incentive of developers to cut corners would be sharply reduced. The bonding companies would, likewise, have every incentive to oversee the design and construction to avoid ever having to pay on the bond. 
The details can be worked out. Yes, the devil is in the details, but if the public’s attention remains focused on Surfside (too naïve to believe?), legislators would be less likely to remain in the pockets of the vested interests—developers and their dependent allies—who would fight to prevent the enactment of any such legislation. Or at least we can hope…naively or not.

Saturday, June 20, 2020

Bolton's Pyrrhic Victory

John R. Bolton is in for it, big time.

Yes, he "won" when District Judge Lamberth denied the Government's request for a temporary restraining order and preliminary injunction against the distribution of Bolton's book, The Room Where it Happened. But a review of the Memorandum Order issued on June 20, 2020 shows that, for all intents and purposes, Bolton's is the classic Pyrrhic victory.

As Judge Lamberth wrote, "[w]hile Bolton’s unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy." This is because, as the court put it, 
By the looks of it, the horse is not just out of the barn—it is out of the country.

Counsel for the government still press for an injunction.
This was because the publisher had printed and shipped over 200,000 copies of the book all over the world, release of the book was scheduled for Tuesday, June 23, 2020, and details of the book had been widely publicized.

Why a Pyrrhic victory? Because the court found that Bolton committed two wrongs: first, he went ahead, "prematurely" and "unilaterally," with the publication of the book without receiving final approval from the Government that the book did not contain classified information, in violation of pre-hiring agreements he signed; second, the court, upon privately ("in camera") reviewing the Government's evidence, found that "Defendant Bolton likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations."

The court nicely summed up what it believed Bolton's strategy to be:
Bolton could have sued the government and sought relief in court. Instead, he opted out of the review process before its conclusion. Unilateral fast-tracking carried the benefit of publicity and sales, and the cost of substantial risk exposure. This was Bolton’s bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. 
Yes, the court said it, boldly and simply: Bolton has exposed himself to criminal liability. And who would take this bet: that Trump and Barr won't get Bolton indicted, and fast?

So much for wretched Mr. Bolton. 

What about the legal aspects of the denial of the TRO?

First, it is a win for free speech (or at least not a loss), unless one believes that the Government has no right to remedy the publication of classified information. But even the amicus curiae briefs filed against the Government's motion did not argue that point, instead arguing, correctly, that governmental attempts at prior restraints are subject to exacting scrutiny and should be denied except in "exceptional cases." And the court cited caselaw that stated that "First Amendment rights are preserved so long as restrictions protect a substantial government interest unrelated to the suppression of free speech, and the restriction [is] narrowly drawn to restrict speech no more than is necessary to protect the substantial government interest."

Second, it clearly rebukes the Government. The issue on which the court decided not to grant the TRO was not that the book did not contain classified information, but that the Government could not show that the issuance of the TRO would "prevent irreparable injury" (one of the four tests the Government needed to satisfy to obtain the TRO) because, as the court put it, "the “horse is already out of the barn.” The incompetent Trump Justice Department first sought a TRO less than a week before the public sale of the book in bookstores, virtual and physical, around the world, with well over 200,000 copies of the books printed and shipped, ready for release, and it had been widely reviewed and quoted. In other words, if there were, in fact, irreparable injury, it had already occurred when the Government sought the TRO, and so a TRO could not prevent injury that had already occurred.

Third, it is not the last word on the legality of a TRO in circumstances such as these, or even, one would think, in this case. This post is being written on Saturday, June 20. Will the Government seek an immediate appeal to the District of Columbia Circuit, and, if so, will that court issue a TRO, even for a matter of a day or two, and remand to the District Court to consider this or that legal issue? No mere lawyer can predict what The Trump and Bar Law Firm will do, or whether the appellate court would somehow be able to overcome the fact that the TBLF twiddled its thumbs for months before finally seeking a TRO. I would bet not, and that Trump will exact his revenge against the perfidious Mr. Bolton by getting him indicted.

Fourth, it is not the end of the case. The Government originally sued to enjoin Bolton from going forward without completing pre-publication review, and to impose a constructive trust on any profits received from publication. Three long days after filing the complaint, the Government amended its complaint to seek 

an Order directing Defendant to notify his publisher that he was not authorized to disclose The Room Where It Happened because he has not completed prepublication review and because it contains classified information; to instruct or request his publisher, insofar as he has the authority to do so, to further delay the release date of The Room Where it Happened until completion of the prepublication review process; and to instruct or request his publisher, insofar as he has the authority to do so, to take any and all available steps to retrieve and dispose of any copies of The Room Where it Happened that may be in the possession of any third party in a manner acceptable to the United States.
Having, predictably, lost the TRO/preliminary injunction battle, the Government can still obtain a constructive trust against the profits Bolton earns from book sales, and there is no reason to see why it would not pursue that relief.

Finally, there is always the prospect of a criminal case captioned United States of America v. John R. Bolton. Pyrrhus, move over. 

Sunday, November 17, 2019

It's National Security, Stupid

Article II, Section 4 of the Constitution says that the President can be impeached for "Treason, Bribery, or other high Crimes and Misdemeanors." 

The Democrats seem to be stuck in legalisms. First it was whether there was a quid pro quo. Now it's whether Trump was bribing the Ukranian President. Both may be grounds for impeachment, but each requires a knowledge of basic legal principles to determine whether the grounds are valid. And each is inherently debatable, giving Republicans the basis for creating doubts where, really, none should exist. 

It is well established that impeachment is not a remedy for criminality alone. Nor is a crime sufficient. If the President was found to have violated a speed limit on federal property, would he be subject to impeachment? No, because even if this were a felony, it would not be a crime that threatens the national welfare, nor is it an act of such self-serving that it casts the most severe doubt on his fitness for office.

The politics of this are actually far simpler and subject to less genuine doubt (or, put differently, less susceptible to being made the subject of confusion among people who do not live, breathe and eat politics, i.e., most people).

President Trump is irritating and embarrassing. In their gut, the broad middle of this country know he is unqualified to be President. They are either looking for--or at least are open to--a rationale for getting rid of him. 

That rationale is staring the Democrats in the face but they seem oblivious to it.

What is the most significant of a President's powers? National security. What is the most dangerous thing a President can do? Tilt his foreign policy in favor of the nation's enemies.

The obvious basis for impeachment, one that is not debatable, is that Trump has been guilty of favoring Russia in the major approaches in his foreign policy:

  • He has weakened Ukraine in its war with Russia by interfering in Ukrainian political affairs and favoring the very corrupt interests he claims to oppose.
  • He has abandoned the Kurds, and thereby paved the way for Russia to gain the upper hand in Syria.
  • He has openly favored Brexit, which helps Russia's long-held desire to weaken the European Union.
  • He has weakened the NATO Alliance, helping to advance another perennial Russian goal.
  • He has openly sided with Putin and against our national security professionals, on the issue of Russian interference with the 2016 election, thereby weakening American political support for strengthening our political security.
  • He elevated the North Korean regime to equal status with the United States, in exchange for nothing but vague promises, thereby fulfilling yet another Russian objective. 
Whether or not this amounts to "treason," it transcends mere disagreements about foreign policy. When a President of the United States consistently supports the foreign policy objectives of a country like Russia, it threatens our national security. There is no question that Trump has done so. If this cannot be a basis for majority support for impeachment, there is more to be afraid of than Trump.

Wednesday, July 10, 2019

Putting AOC on an Equal Footing with Pelosi

News editors like conflict. No surprise in that. The Democrats, to their credit, disagree among themselves. So when fissures appear, editors (and journalists interested in hits and front-page appearances) do backflips. 

Just so with the splits among younger and older Democrats, which, because the media generally abhor subtlety because it's too much "in the weeds," they reduce to a personal conflict between Nancy Pelosi and Alexandria Ocasio-Cortez. 

So far, the press seems to be putting AOC, as she is known, on an equal footing with Pelosi, which is ridiculous. 

The Speaker has a long career of accomplishment in the U.S. House. AOC has been a Member of Congress for a few months, but, while garnering an amazing amount of coverage in major newspapers, that relic of the 19th Century, and less, but still a lot, on cable TV and broadcast news and in online articles, has not demonstrated any clout in the Democratic caucus. Take the recent vote on the original House bill on one of the most highly-followed issue of recent years--the status of undocumented immigrants at the Southern border. The House passed its version of the bill with 227 Democrats voting "yea" and 4 Democrats voting "nay." (4 Democrats were absent.) The four? Members Ocasio-Cortez, Omar, Pressley, and Tlaib. That was the bill Pelosi was talking about when she told Maureen Dowd of The New York Times: “All these people have their public whatever and their Twitter world,” she said. “But they didn’t have any following. They’re four people and that’s how many votes they got.” Yes, a lot more Democrats voted against the Senate bill, which became law, but that vote cost them nothing among the faction of the party that is to the left of the House caucus, and Pelosi did not need them to pass a bill that at least addressed the issue before Congress left town for a recess.

The whole thing causes me to worry about whether this fissure is going to lead the Democrats to a smashing defeat in 2020.

Who is more likely to lead the Democratic Party to a smashing defeat--Nancy Pelosi or "The Squad," as the afore-mentioned four have been calling themselves since right after their election? Let's do something very old-fashioned: look beyond Twitter for real evidence.

If it's fair to assume that people's voting choices are closely correlated to their views on what's important to them, then Democrats would be wise to focus on what's important to their voters. Where does the press come in? They do a basic disservice when they give more prominence to those with views not held by the majority than those views merit. This is not to say that those with non-majority views should be shut out by the media. It is a question of seeing the forest from the trees. 

Take a few moments to read the Pew Research Center's Public’s 2019 Priorities: Economy, Health Care, Education and Security All Near Top of List.

Democratic voters may be repelled by the likes of Donald Trump and Jeffrey Epstein, and they may be sympathetic to the rights of minorities and women.  But, being interested mostly in matters that affect them personally, they think that good government (and politics) are not just about the latest Twitter or other hashtag obsession. Rather, they are concerned mostly about "bread and butter" issues--like how they are going to be able to support themselves during retirement and how they and their children are going to be able to support themselves. They also show increasing concern about the state of the environment. 

And they are skeptical of "solutions" that are oblivious to political reality. So, by a fairly hefty margin, 53-40, more Democrats want the Party to go in a more moderate direction than in a more liberal direction:

In other words, The Squad is right in there with Donald Trump, with a 40% rating. (Yes, it's a little bit apples and oranges, but the point is undeniable.)

Ultimately, AOC and The Squad will achieve whatever they're going to achieve, but what evidence is there that they are going to be more successful than Occupy Wall Street?

If the press could spend a few moments doing basic research rather than repeating Tweets,  maybe the Republicans and Fox News will have less basis to equate all Democrats with The Squad. 

Tuesday, November 13, 2018

Shays's Rebellion Lives On

Is there one factor that has the highest correlation to political leaning? Is it income level? gender? attitudinal factors? There are already available data, from November 6, 2018 exit polls, showing both the breakdowns between the two major parties on a variety of characteristics, as well as stabs at correlations. But surely only one election cannot reliably predict future trends.

I have not taken the time to review these data over the years and, despite a search on Google Scholar and the Pew website, I have been unable to find any. So, my stab is just that. 

It is that, over time, the split is largely based on the age-old cultural and political divisions between city dwellers (recently joined by more suburbanites) and country folk. Let's call it, loosely, metropolitan v. rural. 

This has been a persistent theme throughout American history, perhaps most graphically expressed in the brief rebellion against the political status quo waged by residents of Massachusetts in 1786 and early 1787--colloquially known as "Shays's Rebellion." It may be worth studying these events to try to make sense of what is occurring now.

Shays's Rebellion has typically been portrayed as an effort by dirt-poor farmers to avoid their debts and, along the way, overturn the established order (they did try to seize the federal armory in Springfield). In other words, there was supposedly a correlation between income level and participation in Shays's Rebellion. Indeed, most of the “Rebellion” consisted of semi-successful attempts at shutting down the operations of courts in various localities throughout Massachusetts, most in the western portion, and because, history being written by the victors, so casting the rebels was a propitious way for the victors (merchants from Boston, among them Samuel Adams, and their political allies) to characterize the rebels and their cause. 

Professor Leonard L. Richards, in his 2002 book, Shays's Rebellion, found that this traditional portrait of Shays's Rebellion was wrong. Based on the Richards book, I summarize his findings on two questions: what was the Rebellion about and who were its participants and sympathizers? 

Take the concerns and demand Richards cites as being typical of the complaints addressed to the Massachusetts legislature by local governments in Western Massachusetts since the end of the Revolutionary War in 1783: relief for farmers unable to obtain hard money to pay debts; simplification and reform of court system; elimination of upper chamber of state legislature; redistricting of lower chamber; and moving of state capital from Boston to a more central location. These reforms stemmed from perceived defects in Massachusetts' 1780 constitution, which enshrined conservative principles aimed at preventing the poor or landless from exercising political power, including the creation of an upper legislative chamber based on tax payments and comparable provisions.

On the second question--who were the rebels?--Richards reveals that impoverished farmers were a minority. The vast majority were "yeomen" farmers--not "gentlemen," but not dirt-poor either. Meanwhile, most leaders of what became known as Shays's Rebellion were established, even wealthy, citizens in their local communities in Western Massachusetts. As can be expected, the vast majority, even in the most rebel-laden jurisdictions, were observers, but there was unmistakable widespread sympathy with the central demands of the early protests, as illustrated by the refusal of local militias to put down attempts by semi-armed rebels to shut down a few courts. Importantly, the militia was made up of men who owned property--"men of substance with deep roots in the community since militia law rather systematically excluded the poor and the transient from service," according to Richards. 

In all, from September to December 1786, courts in six towns, including the eastern towns of Taunton and Concord, were forced to be closed. Eventually, Shays's Rebellion was put down by a force of soldiers assembled for this purpose largely by the efforts--and funds--of wealthy Bostonians. Importantly, amidst active attempts of state-sponsored recrimination against the rebels, especially their leaders, Governor Bowdoin was defeated in a landslide by John Hancock. And the general who ordered his state troops to shoot to kill in the battle over the Springfield-based federal armory was vilified for the rest of his life and died a pauper. The first political parties, under President John Adams, were roughly split on these lines. Divisions during the eras of Jacksonian democracy and prairie populism were, arguably, direct descendants of this split, and a quick look at a red-blue national map by counties show the concentration of Democrats in metropolitan areas, especially on the coasts.   

The key point is that just as participants in Shays's Rebellion were largely comfortable if not wealthy men from rural areas, Donald Trump's following is composed very substantially of  member of the "establishment" of small town and rural America.

Realistically, I am not optimistic about the Democrats' ability to break down the barriers between metropolitans and country folks. Organized Democrats--or at least many of those who vote for Democratic candidates--seem to have a preternatural ability to offend their country cousins. This year, it was calls to "abolish" ICE, harassment of their political opponents at restaurants and homes, and unquestioned acceptance of women's accusations against men because they were made by women. These tactics play into the hands of Republicans like Trump (and have done so at least since the days of Richard Nixon) by enabling them to portray all opponents as discourteous mobs. They were taking a page from the playbook of opponents of Shays's Rebellion nearly 250 years ago.

Friday, November 9, 2018

The Senate: "Not Democracy," For Sure!

Immediately after this year's mid-term elections, New York Times columnist Michael Tomasky lamented that, in "Democratic Senate candidates garnered 45 million votes, and Republicans just 33 million (57 percent to 42 percent). Yet, the Republicans will gain perhaps three seats. That is not democracy." 

No, it certainly is "not democracy." But how can one seriously suppose that the Constitution structured the government of the United States on principles of "democracy"? Go no further than Federalist 10 ("The Union as a Safeguard Against Domestic Faction and Insurrection"), in which James Madison examined the differences between a democracy ("a society consisting of a small number of citizens, who assemble and administer the government in person") and a "republic" ("a government in which the scheme of representation takes place"). 

Even if Mr. Tomasky can be granted poetic license and be assumed to be using "democracy" as a reference to the power of numerical popular majorities, his comments are seriously mistaken. The Constitution intricately limits the power of the majority and preserves the power of individual States. Witness this discussion of "the equality of representation in the Senate" in Federalist 62 ("The Senate"):
The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but ``of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.'' A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
In short, according to Madison or Hamilton (the authorship of Federalist 62 is assigned to one or the other), the Senate was constructed as it was on the basis of a compromise between small states and large states; it was expressly designed to prevent dissolution of the powers of the states and to provide a check against oppression of small states by the large, while vesting in the House the power to prevent oppression of large states by the small.

My fellow Democrats, a perfect example of the purpose of the Senate was the defeat of the GOP's American Health Care Act by one vote in the Senate. The fact that it was defeated is ascribed to one Senator--the late John McCain--but his vote carried no greater weight than those of 12 Senators from "small" states like Alaska, Delaware, Maine, Montana, New Hampshire, Rhode Island and Vermont. 

As Democrats, let's focus--as Mr. Tomasky does in his op-ed--on getting more votes from people who live in "red" states. Let's stop focusing on the side-effects of particular provisions of the Constitution. Let's live or die under that document.

Wednesday, August 29, 2018

Were Cohen's Hush Payments Illegal Campaign Contributions: Who the Hell Knows?

On August 21, 2018, Michael Cohen, Donald Trump's former lawyer/fixer, pleaded guilty to violating 52 U.S.C. §§ 30109(d)(1)(A), 30116(a)(1)(A), and 30118(a),  and 18 U.S.C. § 2(b). United States v. Cohen, 18-cr-00602 (S.D.N.Y.). These are all provisions of federal law dealing with illegal election campaign contributions. In particular, they had to do with Cohen's making or arranging for separate payments to a porn star and a former Playboy model to secure their silence, before the 2016 election, about their supposedly having had sex (separately) with Trump.

Amidst the media firestorm that resulted, it was not seriously discussed whether, 
irrespective of the fact that Cohen pled guilty, these payments actually constituted violations of the federal campaign finance law. Whether they were violative depends on whether the payments were "contributions" to Trump's Presidential campaign. The Federal Election Campaign Act, 52 U.S.C. §  30101(8), states, in pertinent part: "The term 'contribution' includes--(i) any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office..." 

What does "for the purpose of influencing any election for Federal office" mean? That the sole purpose of the payment was to influence a federal election? Or does it suffice that one of the purposes of the payment was to influence an election? Suppose, in the context of the Cohen case, that the payments had two purposes--influencing the Presidential election and preventing the Trump's wife or family from hearing about the candidate's possible sexcapades. Under one reading of the law, the payments would be contributions and, under the other, the they would not be contributions. Note that this hypothetical is based on the assumption that the fact-finder (judge or jury) can and does find, as a matter of fact, that the payments had two purposes: in other words, just because a defendant or the candidate claim that there were two purposes, that claim need be credited by the fact-finder. Here, it is assumed, for argument's sake, that it is.

Michael Mukasey, a former U.S. Attorney General under George W. Bush and, before that, a U.S. District Judge, appeared on PBS the day after the Cohen guilty plea and, without reservation, announced that the law required that electioneering was the sole purpose of the payment: "If there is a dual purpose, including protecting his reputation, then it’s not considered a campaign contribution." Mr. Mukasey was not alone in making this argument. Months before the Cohen guilty plea, Rudolph Giuliani, President Trump's personal lawyer, made essentially the same argument in a statement issued in May 2018.

Of course, Mr. Mukasey and Mr. Giuliani are entitled to their opinion--even to be cocksure of their opinion--and it may turn out that they're right, but the fact is there's no case law that confirms (or proves incorrect) their opinion. Instead, the issue is up for grabs.That neither of them felt the need to caution the listener that theirs was only one view of the issue and that there was no case law on the subject is regrettable, but apparently this is not the season for such a high level of intellectual honesty, especially when you're aligned with Trump.

Did the U.S. Attorney's Office come up with their theory that the payments were illegal campaign contributions out of thin air? No. At least one previous case, not on "all fours" with the Cohen/Trump case, paved the way. It appears that the only time that the statute had been used in a criminal case was in the Government's June 3, 2011 indictment of former Senator (and Presidential candidate) John Edwards. United States v. Edwards, 11-cr-161 (M.D.N.C.). In that case, while running for President in 2007, Edwards coordinated the payment of nearly a million dollars to his mistress to keep his fathering of her child a secret. His position was that the purpose of the payment was not electioneering but personal--to keep the information from his cancer-ridden wife--and thus did not constitute a violation of the campaign finance statute.

The Edwards trial resulted in an acquittal on one count and a hung jury on the other five, and the Government chose not to retry him. Before the case went to the jury, the defense moved to dismiss the indictment on the basis, among other things, that the payments were not "contributions" under the election law. The government opposed the motion, and the trial judge denied the motion without writing an opinion. The briefs filed by the defense and the prosecution are on PACER. Neither side was able to cite any authority directly on point.

The defense principally argued that a Fourth Circuit decision, N. Carolina Right to Life, Inc. v. Leake, 525 F.3d 274, 286 (4th Cir. 2008), required dismissal. Leake involved a challenge to a state statute requiring registration of a committee "that has as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates." The Fourth Circuit held that under the Buckley v. Valeo, 424 U.S.1 (1976), the First Amendment required that for a group to be regulated as a political committee, the group must have "the major purpose” of supporting or opposing a candidate, and that its being "a major purpose" did not suffice (emphases added). The defense argued that Leake 

required a narrow reading of the term "contribution"--that the federal definition of contribution referred solely to a payment whose sole purpose was electioneering.

The Government responded that courts construing the term "for the purpose of" in other statutory contexts (including, ironically, the Mann Act) have rejected the argument that the term means "only for the purpose of." The Government also argued that the First Amendment did not require otherwise. As a side note, following the Supreme Court's decision in Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), three circuits have concluded that "the major purpose" test under Valeo is not a  
requirement, but rather is a statutory requirement. See Vermont Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 135 (2d Cir. 2014) (disagreeing with Leake and citing two other such cases).
Without denigrating either side in the Edwards case, my view is that neither side's brief did much beyond scratch the surface of this issue. Certainly, District Judge Eagle's denial of the motion to dismiss without an opinion and her letting the case go to the jury would appear to be an extremely slim reed on which might lean the conclusion that the term "contribution" does not require that the sole purpose of the underlying payment be to influence an election. It remains to be seen whether any further prosecutions or Federal Elections Commission rulings will provide some guidance on this issue. 

Another issue is whether, if the law is as vague and uncertain as it appears it may be, a potential defendant would have the requisite mens rea--willfulness or specific intent--required for any illegal act to be criminal. Not to mention how this issue would play out in an impeachment context.

In the meantime, for partisans such as Messrs Mukasey or Giuliani who argue "no crime"--and for people, including representatives of organizations as disparate as the Heritage Foundation and Common Cause, who have taken the opposite position--I humbly offer the suggestion that they temper their opinions, no matter how heartfelt, with a healthy dose of "who the hell knows?".