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  
constitutional  
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?".








Tuesday, June 12, 2018

Wishin' and hopin' and thinkin' and prayin'

The Singapore Summit is over. Who won and who lost?

First, the all-important atmospherics: 

Most important for both, Trump and Kim got their photo op:



Trump took care of his base, railing before the summit against the (always) unidentified "haters and losers." 

And, after the summit, he managed to fawn all over Kim and even to call Chinese dictator Xi "a very special person."

But, atmospherics and premature-Nobel-Prizing aside, 

What did the United States get and what did North Korea get?

What the U.S. Got

1. An agreement to recover POW/MIA remains and repatriate those already identified.

Comment: a worthy goal, but at what cost?

 2. An agreement to "commit to work toward complete denuclearization of the Korean Peninsula."

Comment: a worthy goal, but:
a."work toward": at best, an unenforceable agreement to agree
 b. no mention of "irreversibility."
c. removal of U.S. nuclear weapons from S. Korea?
 
3. An agreement to "join their efforts to build a lasting and stable peace regime on the Korean Peninsula."

Comment: a worthy goal, but:
a. what does it mean?
b. how will it be achieved?
c. where does it leave South Korea?
d. where does it leave the North Korean people?
e. "lasting and stable" are key words for the Kim family.

4. An agreement to "commit to establish new U.S.–DPRK relations in accordance with the desire of the peoples of the two countries for peace and prosperity."

Comment: a worthy goal, but:
a. what does it mean?
b. how will it be achieved?
c. where does it leave South Korea?
d. do the North Koreans deserve only peace and prosperity?
d. no mention of "freedom" or "liberty"


What North Korea Got

1. The U.S. agreed to call off what Trump called "inappropriate," "very provocative" "war games"--joint military exercises with South Korea.

Comment: a "huge" concession by the U.S.
a. These "war games" have served to remind 
North Korea of the U.S.' commitment 
to defend South Korea, a major U.S. ally
b. This has been a major North Korean goal for decades.
c. where does it leave South Korea?

2. The U.S. gave North Korea--and the Kim family dynasty--important legitimatization:



Bottom line: 

The big winners: Kim and his clique.

The next big winners: 

Russia, because Trump can't stop scratching that itch and it thrives when the U.S. creates disunity among its allies, 

and China (which can now return to trading with North Korea and whose Communist Party chief, Xi, got a nice plug).

The big loser: South Korea.

The third biggest winner: those who own the royalty rights to Dusty Springfield's 1964 hit, Wishin' and Hopin'. Copyright 1969, Blue Seas Music, Inc. & KAC Music Co., Inc.

Monday, January 8, 2018

Marlins' Trades: Look in the Mirror

As dedicated Marlins fans—we go to 20 games a year and watch almost every other game on TV—my wife and I are surely disappointed that the new Marlins ownership has lowered player salaries by jettisoning three starters—Dee Gordon, Giancarlo Stanton and Marcell Ozuna.

But as realists, we are not at all surprised. How could it be otherwise?

Anyone focused on reality, as opposed to emotion-driven name-calling—in other words, anyone who considers it necessary to base opinions on the facts as they are and not as one wants them to be—knew that holding onto these high-priced stars made no long-term sense.

Why? Because of a few undeniable facts, both of the baseball and financial variety.

First, the baseball facts:

1.             The team was a chronic loser with Stanton and Gordon and Ozuna. Let’s look at their record since they moved into Marlins Park in 2012:

Year
Record
Games Out in NL East
Games Stanton Played
…Ozuna
…Gordon
2012
69-93
29
123
0
0
2013
62-100
34
116
0
0
2014
77-85
19
145
153
0
2015
71-91
19
74
123
145
2016
79-82
15.5
119
148
79
2017
77-85
20
159
159
158


2.             Their starting pitching—even had Jose Fernandez not died—was mediocre or worse. You need four starters to win. One does not do it. Aside from the young starter who came from nowhere, Jose Urena, starters the Marlins used in 2017 were over-the-hill or marginal—think Dan Straley,  Adam Conley, Edinson Volquez, Tom Koehler, and Vance Worley. Yes, Urena had a good 2017 (14-3 W/L, 3.82 E.R.A., 1.273 WHIP), but no one can say whether what he displayed last year is replicable. But for every Urena there was a Justin Nicolino, an Odrisamer Despaigne, or, my favorite, a Wei-Yin Chen, an oft-injured lefty who parlayed one decent year (2014 at age 28) with the Orioles into a ludicrous 5-year, $80 million backloaded contract (he’ll earn $24,600,000 in 2020). This, from the same management team that lavished millions on John Buck, Jarrod Saltalamacchia, Heath Bell, and similar busts.

3.             Their relief pitching was equally suspect. Of the 5 Marlins pitchers with the most relief appearances, they had WHIP of 1.200, 1.379, 1,339, 1.392, and 1.553. The The Marlins dished out major dollars to a 37-year-old submariner, Brad Ziegler, whose best years were long behind him: his cumulative ERA since debuting in 2008 (including 2017) was 2.61; in 2017, 4.79. His average WHIP, 1.252; 2017, 1.553.

4.             Their depth was non-existent. Compare the Astros’ 2017 top three non-starting position players to the Marlins’:



G
PA
AB
R
H
2B
3B
HR
RBI
SB
CS
BB
SO
BA
Astros














Marwin Gonzalez
134
515
455
67
138
34
0
23
90
8
3
49
99
.303
Evan Gattis
84
325
300
41
79
22
0
12
55
0
1
18
50
.263
Jake Marisnick
106
259
230
50
56
10
0
16
35
9
4
20
90
.243
Marlins














JT Riddle
70
247
228
20
57
13
1
3
31
0
2
12
50
.250
Ichiro Suzuki
136
215
196
19
50
6
0
3
20
1
1
17
35
.255
Tyler Moore
104
203
187
17
43
14
0
6
30
0
0
10
56
.230


5.            
As usual, the Marlins’ minor league system was bare. At the end of the 2017, their minor league system was ranked 28th by Baseball America. Even after the trades of Gordon, Stanton and Ozuna, not a single guy in their farm system was rated in Baseball’s Top 100 by MLB Pipeline. Just look at their 2013-2017 top draft choices to get an idea why:

a.     2013 Colin Moran, 3B (now with Astros, .206 BA, 34 AB);
b.    2013 Matt Krook, LHP (never signed by Marlins);
c.     2014 Tyler Kolek, RHP (still in Rookie League);
d.    2014 Blake Anderson, C (switched to pitcher, Gulf League);
e.    2015 Josh Naylor, 1B (traded to Padres in 2016; low minor leagues)
f.      2016 Braxton Garrett, LHP (yet to play: Tommy John surgery)
g.    2017 Trevor Rogers (yet to play)

How did the Marlins get that way? Were all their front-office baseball people total dolts? Maybe they were below-average talent evaluators, but is that the sole reason for the Marlins’ sustained mediocrity? Not likely. More likely it’s at least largely, if not exclusively, a lack of cash to spend on first-class scouts, cross-checkers, data analysts and the other sources of baseball knowledge. Any question why is there not enough cash?

That leads to the financial facts.

1.             It has been widely noted that the Marlins have been last or near to last in the National League in attendance for years. But what is the effect of this lousy attendance on team revenues?

This is the Marlins’ reported home attendance since 2012, when they moved to Marlins Park (still named generically). The “Gap in Dollars” estimates that, as Fortune reports, the average Marlins ticket-buyer spent $33 per ticket plus concessions per game.



Year
Marlins
ML Average
Marlins’
Rank
Difference
Gap in Dollars
2012
2,219,444
2,495,309
18
275,865
9,103,543
2013
1,586,322
2,467,563
29
881,241
29,080,959
2014
1,732,283
2,457,987
27
725,704
23,948,245
2015
1,752,235
2,458,668
28
706,433
23,312,280
2016
1,712,417
2,438,636
28
726,219
23,965,214
2017
1,651,997
2,422,347
28
770,350
25,421,564


For nostalgia’s sake, let’s look at 2003, the last year the Marlins made the playoffs and won the World Series:

Year
Marlins
ML Average
Marlins’
Rank
Difference
Gap in Dollars
2003
1,303,214
2,256,300
28
953,086
33,358,003

2.             But that’s only attendance and concessions. How about local TV revenue. Figures from Fangraph for 2016 show that Miami is locked into a local TV contract through 2019 paying them $20 million a year; the mean payment per team was $53.5 million, while the median was $46 million. Split the difference, and the Marlins bank $30 million a year less than the average team from local TV rights. Meanwhile, media reports claim that the Marlins earn next to nothing from radio rights. So, between attendance and TV revenues, they’re in the hole about $55 million a year (throwing out 2012 attendance, their first year in the new park). No wonder they had to lower their payroll by $25 million a year—and, we can pray, put some of the difference into a quality farm system and analytics group.

Finally, let’s compare the years at Marlins Park when Stanton was injured for a major portion of the season and when he was not injured, to see if the fans turned out to see their star when he was playing.

Year
Games Stanton played
Marlins Attendance
2012
123
2,219,444
2013
116
1,586,322
2014
145
1,732,283
2015
74
1,752,235
2016
119
1,712,417
2017
159
1,651,997

As you can see, there’s no correlation. Indeed, in 2017, when he had the greatest year any Marlin has ever had and likely will ever have, attendance dropped overall, even though he played in 159 games.

So, for all who seek to cast blame for this situation, why blame the owners, capitalists all—from Wayne Huizenga to John Henry to Jeffrey Loria to Bruce Sherman/Derek Jeter. Who can blame them for either growing tired of losing money or not wanting to lose money from the outset? Who would willingly buy a business to lose money? Yes, business losses can be written off a tax return, but until people pay taxes at a 100% rate, no one comes out ahead by incurring business losses.

The only solution to this team’s financial woes will be increased attendance and TV viewership. But what chance is there that, as the Miami Herald has reported the Sherman/Jeter business plan reflected, attendance revenue and local TV revenue are going to increase sharply?

If you’re looking for people to blame, look at the people who don’t go to Marlins games, don’t listen to them on the radio, and don’t watch them on TV. No one is required to do any of the three. But if people want to get angry and fulminate, but stay even somewhat tethered to reality, they should start by looking in the mirror.

When you’re though looking in the mirror, concede this: this is a lousy baseball town. Then ask whether you’re willing to do anything about it.