Are Campaign Violations a Crime?
Erica: Let’s continue our discussion now. Joining me, Larry Noble, a former general counsel at the Federal Election Commission and CNN contributor, and Page Pate, criminal defense attorney and CNN legal analyst. Larry, I want to start with you, and I just want to run by you this tweet that we saw earlier today from the President. I’m gonna read it to you here.
“Michael Cohen pled guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation and it was easily settled.” What do you make of that?
Larry: Well, that’s nonsense. First of all, he pled guilty to two campaign finance violations that are a crime. They’re a violation of the criminal law, so they are a crime. Comparing it to the Obama settlement is also not fair, accurate, or…it makes no sense. Virtually every presidential campaign, or probably every major presidential campaign comes up with campaign finance violations. They’re what we used to call routine violations. They’re not excused, but they’re reporting violations where they failed to report some things inadvertently.
I think, in the Obama case, it was what are called 48-hour reports, failure to report contributions. In none of those cases, that I’m aware of, has the actual candidate or the President been implicated in ordering it be done. It wasn’t Obama said, “Let’s not report these contributions.” So, those are kinda the more…they’re regular violations that you see in presidential campaigns. Here, what we have is an allegation that the President directly ordered Cohen to pay money to prevent people from talking about alleged affairs, prevent them from talking about alleged affairs. That’s a potential violation on several counts.
One, people talk about the reporting violation, that these were contributions that weren’t reported. That’s true. But, they were paid by the Trump organization. That makes it a corporate contribution. It is illegal to make a corporate contribution. It’s also illegal for an officer of a corporation to authorize a corporate contribution, which it sounds like what Trump may have done. Trump is also the candidate.
It’s illegal for the candidate to accept the corporate contribution. There were also excessive contributions from Cohen in this. Same thing applies. It was illegal to accept those contributions by the candidate. So, this is very unusual in that we have the candidate being implicated in directly coordination and directing the actual violations of law. And that’s not what we’ve seen before.
Erica: All right. So, you don’t agree, obviously, with the President’s tweet. You laid out…
Erica: …for us very well there. When it comes to Michael Cohen, though, Page, how credible is Michael Cohan at this point?
Page: Well, Erica, I think, obviously, that’s the strongest argument that the White House has, is, look, this guy has clearly not been truthful with the American people. He’s committed felony crimes that he’s now pled guilty to. So, how can you believe what he’s saying about me? And that’s especially true when we hear his lawyer saying, “Look, he’s ready to talk more. He feels, somehow, betrayed by the President.”
So I think it is certainly, from the President’s standpoint, the right move to attack his credibility. And I agree with Larry that what’s been alleged here are certainly criminal acts, but they don’t have to be. I mean, these particular statutes also allow for civil punishment: fines and things of that nature, which you don’t see in, say, a bank fraud statute or something like that. So there is discretion, where a prosecutor can decide not to pursue this as a criminal indictment or a criminal information and leave it as a civil fine.
Erica: And, Larry, it’s also important to point out here that this could, ultimately, be handled very differently if the President were not the President today.
Larry: Right. If the President were not the President today, then there would not be this question about whether he can be indicted. That, it’s clear that if he had not won, that he could have been indicted for these things. I think, also, it is true that there’s a civil element to this, that these could be prosecuted by the FEC as a civil violation. The difference is, when they become a knowing and willful violation, and a core violation of the law, then they can become prosecuted as a criminal violation. And that’s what’s gonna be alleged here.
One other point I want to make, and I agree that Michael Cohen has credibility issues. But it’s somewhat ironic that the President, who is known to regularly lie about things, has serious credibility issues, and, in fact, lied about this very thing, first said he had no knowledge of the Stormy Daniels payments and then had to admit, yes, he did know about the Stormy Daniels payments, is attacking the credibility of Michael Cohen. I think there are credibility issues on all sides.
Erica: You know, what’s fascinating, too, is we look at this, and you pointed this out, Page, is, as we know, there are questions about what else could be said here. We heard directly from Lanny Davis this morning. Michael Cohen may have more things he wants to talk to the special counsel about. This does not include cooperation, this plea deal. When you hear those words from Lanny Davis, is it in some ways, maybe, a public push on his part to come up with a separate deal, perhaps, with the special counsel?
Page: It’s certainly possible, Erica, but it’s a strange legal strategy. I mean, if he really has good, solid information that the special counsel is going to be interested in, then set up a proffer meeting. Set up a time for Michael Cohen to sit down with the investigators, with the prosecutors from Bob Mueller’s office, and tell them, “This is what I have.”
Even the lawyer can do that. Lanny can sit down with those folks and say, “Let me give you an attorney proffer. I’m gonna tell you what my client would say,” instead of doing it in the news media. Because, as we’ve seen, the special counsel’s office is really not inclined to use the media as part of their investigation. So, from a legal strategy, I think you would be doing that behind closed doors and not in front of the camera.
Erica: You know, it’s fascinating, too. Larry, I know you said that this plea deal itself could form the basis for impeachment proceedings. Not as many people are jumping on that impeachment bandwagon, but you think it’s okay to go there.
Larry: Well, look. I think it has to be discussed. If there is serious evidence that the President committed a felony, then I think impeachment is one of the things that’s on the table. As a practical matter, is it going to happen in this Congress? Very doubtful. But I think it is something that has to be talked about, because we talk about whether or not a sitting President can be indicted.
And there is the Office of Legal Counsel’s opinion that it can’t be. That’s not settled law. But if you’re not going to be able to indict a sitting President, and then if you’re not gonna talk about impeachment, it means he is above the law. And that is just really something hard to accept in a democracy, that the President is above the law and can do whatever he wants.
Erica: Page, part of this, too, is none of us can ignore the fact that this has all become so political. And as one of you just pointed out, we’re not hearing anything from the Mueller camp on this, but it is what we are hearing from other folks who are either directly or indirectly involved, who are really trying to paint this investigation in whichever way is most favorable to them. So, looking at it from that political standpoint, no matter what happens in the end, no matter what’s in that report, I mean, in some ways, are we kinda past the point of no return here, Page?
Page: I think so, Erica. And really, that, to me, is the most troubling part of all this. I mean, I’m on the front lines in federal criminal courts, in red states, all the time. And I’m defending people who are charged with federal crimes. And whenever I see bombs thrown by the President, by the White House, at their own Department of Justice, at the special counsel’s office, I see the long-term effects that’s going to have on the ability of the government to prosecute cases in courts across this country.
These credibility issues, he may be talking about Michael Cohen one day and challenging his credibility, but he’s also talking about the rule of law. And I’m concerned that the consequences of those actions will last far beyond his presidency.
Erica: Page Pate, Larry Noble, appreciate it. Thank you.
Larry: Thank you.
Page: Thank you.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.