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?".